THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

GIFT  OF 

WilliMi  Popper 


THE 


Criminal  Jurisprudence 


ANCIEN'T    HEBREWS 


Compiled  from  the  Talmud  and  other  Rabbinical 

Writings,  and  Compared  with  Roman  and 

English  Penal  Jurisprudence. 


BY 

S.    MENDELSOHX,    LL.  D. 
Rabbi  Conor.  "Temple  ok  Israel,"  Wilmington,  N.  C. 


BALTIMORE  I 

M.  CURLANDER, 

LAW  BOOKSELLER  AND  PUBLISHER. 
1891. 


COPYRIGHT,    1890, 


S.     M  EN  DELSOH  N 


ALL  EIGHTS  KESEKVED. 


TO    THE    READER 


As  these  paragraphs,  now  ready  for  the  printer,  lie 
before  me,  I  imagine  them  in  your  hands,  and 
hear  you  enquire  after  their  author's  object  in  penning 
and  publishing  them.  To  satisfy  your  natural  curi- 
osity, I  beg  leave  to  point  to  the  motto  and  to  the  con- 
clusion of  this  work,  and  to  assure  you  that  I  had  in 
view  no  other  than  the  two-fold  object  of  acquainting 
those  to  whom  the  Talmud  is  ''as  a  sealed  book" 
with  an  important  part  of  its  contents — its  system  of 
criminal  jurisprudence ;  and  of  thus  contributing 
my  mite  towards  the  vindication  of  the  Israelitish 
people's  ancient  literature  from  the  aspersions  cast 
upon  it  by  inimical  and,  not  unfrequently,  ignorant 
writers.  Which  of  these  motives  first  prompted  this 
labor,  I  am  unable  to  determine  even  for  myself;  but 
I  trust  that  you  will  appreciate  the  importance  of 
both  together.  Mr.  Arnold  has  truly  said:  "Every 
thing  of  the  nature  of  law  has  a  peculiar  interest  and 
value,  because  it  is  the  expression  of  the  deliberate 
mind  of  the  supreme  government  of  society  ;  and  as 
history,  as  commonly  written,  records  so  much  of  the 

iii 


IV  TO    THE    HEADER. 

passionate  and  unreflecting  part  of  human  nature, 
we  are  bound  in  fairness  to  acquaint  ourselves  with, 
its  calm  and  better  part  also." 

Of  the  many  excellent  German  works  on  the  par- 
ticular branch  of  Rabbinic  lore  treated  of  in  these 
pages,  I  have  consulted  none,  because  I  wished  to  let 
the  ancient  Hebrew  sages  speak  for  themselves,  and 
not  through  the  mouths  of  modern  commentators. 
English  works  on  this  subject  I  have  not  seen,  except 
a  few  articles  liere  and  there,  and  Vargha's  chapter 
on  the  '' Defense  in  Criminal  Cases  with  the  Ancient 
Hebrews."  Wines's  valuable  work  treats  of  the 
Mosaic  system  only. 

Only  works  of  generally  recognized  authority  have 
been  referred  to  for  data  of  historical  matters  as  well 
as  of  Greek,  Roman,  or  English  Law.  Those  most 
frequently  cited  are  the  following  : 

Arnold.  Introductory  Lectures  on  Modern  History, 
by  Thomas  Arnold,  D.  D.  Edited  by  Henry 
Reed,  M.  A.     Philadelphia,  1857. 

Beccaria.  Of  Crimes  and  Punishments,  by  Caesar 
Bonesana,  Mqs.  di  Beccaria.  Quoted  after  the 
German  of  M.  Waldeck.     Berlin,  1870. 

Blackstone.  Commentaries  on  the  Laws  of  England, 
by  Sir  William  Blackstone.  Edited  and  an- 
notated by  Christian  Chitty  and  others. 


TO   THE   READER.  V 

Fiske.  Manual  of  Classical  Literature,  from  the  Ger- 
man of  J.  J.  Esclienburg,  with  Additions  and 
Notes,  by  W.  W.  Fiske.  Fourth  Edition. 
Philadelphia,  1844. 

Gibbon.  History  of  the  Decline  and  Fall  of  the  Roman 
Empire,  by  Edward  Gibbon.  With  Notes,  by 
the  Rev.  H.  H.  Milman. 

Graetz.  History  of  the  Jews  from  the  Earliest  Times 
to  the  Present,  by  Prof.  Dr.  H.  Graetz.  Second 
(German)  Edition.     Leipzig 

Hallam.  Views  of  the  State  of  Europe  during  the 
Middle  Ages,  by  Henry  Hallam. 

Montesquieu.  The  Spirit  of  Laws.  Translated  from 
the  French  of  M.  De  Secondat,  Baron  de  Mon- 
tesquieu. First  American  Edition.  Philadel- 
phia, 1802. 

Plutarch.  Lives.  Translated  and  annotated  by  John 
Langhorne,  D.  D.,  and  William  Langhorne,  A. 
M.     Baltimore,  1830. 

Roscoe.  A  Digest  of  the  Law  of  Evidence  in  Crimi- 
nal Cases,  by  Henry  Roscoe.  With  Notes,  &c. , 
by  George  Sharswood.     Philadelphia,  1836. 

Smith.  A  Dictionary  of  Greek  and  Roman  Antiqui- 
ties, by  William  Smith,  Ph.  D.  Third  Ameri- 
can Edition.     New  York,  1850. 


VI  TO    THE    READER. 

Wines.     Commentaries  on  the  Laws  of  the  Ancient 
Hebrews,  by  E.  C.  Wines.     New  York,  1853. 

The  paragraj)hs  or  sections,  as  well  as  the  notes, 
are  numbered  consecutively,  in  order  to  facilitate 
reference  from  place  to  place,  thereby  avoiding  fre- 
quent repetitions  of  rules,  and  saving  space. 

With  great  pleasure  do  I  hereby  express  my  grati- 
tude to  those  gentlemen,  both  of  the  pulpit  and  the 
bar, — whose  good  opinion  might  well  be  an  object  of 
pride  to  writers  of  literary  pretensions  far  higher  than 
mine, — who  have  examined  the  Manuscript  of  this 
compendium  and  encouraged  me  with  their  warm  ap- 
probation. Especially  do  I  thank  the  friend  who 
helped  me  to  make  the  phraseology  as  smooth,  and 
the  diction  as  little  involved,  as  is  possible  in  a  work 
of  this  nature. 

In  conclusion,  let  me  assure  you  that,  in  presenting 
the  Kabbinic  Laws,  it  was  my  constant  and  earnest 
endeavor  to  be  correct  to  the  letter  and  to  the  spirit 
of  the  Talmud.  How  far  I  have  succeeded  in  this, 
the  learned  critic  will  be  able  to  tell  more  readily 
than 

The  Author. 

Wilmington,  X.  C,  November,  1890. 


CONTENTS. 


Introduction,  §§1-10 9 

I.  Crimes  and  Punishments. 

1.  As  to  number,  §§  11-12 25 

2.  Provisos,  §§  13-19 28 

3.  Misdemeanors,  Crimes  and  Penalties,  §§20-24 37 

4.  Capital  Crimes,  §§25-32 44 

5.  Homicide,  §§33-37 58 

6.  Murder,  §§  38-44 67 

7.  Persons  Indictable,  §§  45-50 78 

II.  The  Synhedrion. 

1.  Organization  and  Jurisdiction,  §§  51-56 87 

2.  Qualifications,  §§  57-58 92 

3.  Sessions  and  Recruitments,  §§59-64 96 

4.  Honorarium,  §§65-67 102 

III.  The  Trial. 

1.  The  Participators,  §§  68-71 108 

2.  Time  of  Trial,  §§  72-74 112 

3.  Witnesses,  §§  75-77 115 

4.  Cautioning  Witnesses,  §§  78-79 120 

vii 


Vlll  CONTENTS. 

5.  Examination,  §§  80-91 123 

6.  The  Defendant,  §§  92-94 132 

7.  Disproval  and  Confutation;  §§  95-99 135 

8.  The  Deliberations,  §§  100-104 140 

9.  The  Verdict,  §§  105-113 143 

10.  Reversal  of  Judgment,  §§  114-115 150 

IV.  The  Execution. 

1.  Between  Life  and  Death,  §§  116-120 153 

2.  The  Executioners,  §121 156 

3.  The  Consummation,   §§  122-127 157 

4.  Posthumous  Ignominie.*,  §§  128-133 161 

5.  Minor  Punishments,   §§134-139 166 

6.  Rehabilitation,  §§  140-141 173 

Maxims  and  Rules,  §  142 175 

Conclusion,  §§  143-144 185 

Appendix 187 

Index „....  255 


THE 

Criminal  Jurisprudence 

OF  THE 

ANCIENT    HEBREWS 

BY 

s.  mendelsoh:n,  ll.  d. 


"In  the  department  of  law,  whatever  God  allotted  to  other  ages  and 
nations,  as  contributing  to  their  mental  development,  must  not  remain 
strange  to  our  people,  but  must  be  dressed  up  and  offered  to  them  for 
the  enhancement  of  their  own  powers  and  advancement  of  their  moral 
faculties."  Savigny. 


INTRODUCTION. 

§  1.  Whatever  cliiFerences  of  belief  people  may  en- 
tertain regarding  the  ''Total  Depravity"  dogma,  all 
admit  the  high  antiquity  of  crime.  Every  observant 
reader  of  history,  sacred  or  profane,  becomes  impressed 
with  the  idea  that  crime  is  almost  coeval  with  the 
appearance  of  man  on  earth;  that  no  age,  no  nation, 
no  country,  no  province,  ever  was  nor  ever  will  be 
exempt  from  evildoers:  from  individuals  committing 
acts  offensive  to  both  God  and  man.  And  were  every 
human  being  allowed  free  scope  in  the  indulgence  of 
his  passions  and  propensities;  were  there  no  restric- 
tive laws  enacted  against  the  disturbing  of  the  peace 

9 


10  INTRODUCTION. 

of  societyj  or  against  aggression  on  individual  rights: 
"one  might  swallow  the  other  alive.  "^  From  time  to 
time,  therefore,  laws  are  adopted,  embodying  certain 
''rules  of  civil  conduct,"  of  right  or  wrong,  of  what 
may  or  may  not  be  done,^  and  at  the  same  time,  as  a 
matter  of  course,  providing  modes  of  punishment  for 
the  violation  of  those  laws^  which  constitute  the  cove- 
nant of  social  life. 

§  2.  Accordingly,  the  earliest  penal  laws  were  en- 
acted for  emergencies,  after  the  commission  of  the 
crime;  and  since  they  were  framed  with  special  refer- 

•  Aboth  III,  2.  Epicurus  says:  "The  worst  of  laws  are  so 
necessary  for  us  that,  Avithout  them,  men  Avould  devour  one 
another. ' '  — Plutarch. 

2  The  immortal  Plato  says:  "  Without  laws  we  should  be  like 
beasts."  (Laws  IX). — Chitty  wisely  remarks:  "The  libertas 
quidlibet  faciendi,  or  the  liberty  of  doing  everything  which  a 
man's  passions  urge  him  to  attempt,  or  his  strength  enables 
him  to  effect,  is  savage  ferocity ;  it  is  the  liberty  of  the  tiger, 
and  not  the  liberty  of  a  man."  (Blackstone  I,  126).— Laws  are, 
therefore,  more  or  less  the.  expression  of  man's  reason,  as 
opposed  to  his  interest  and  his  passion:  they  are,  "the  condi- 
tions under  which  men,  leading  independent  and  isolated  lives, 
united  themselves  into  societies,  in  order  to  avoid  living  in  a 
state  of  constant  warfare,  although,  at  the  same  time,  they  cur- 
tailed the  enjoyment  of  a  freedom  which  the  uncertainty  of  its 
tenure  could  not  presei-ve.  Of  that  freedom  they  voluntarily 
renounced  a  part,  in  order  to  enjoy  the  remainder  in  peace  and 
security"  (Beccaria,  §1). 

3  "Law,  without  sanctions  or  penalties  annexed,  is  no  law, 
but  only  counsel,  or  more  or  less  plausible  advice.  It  becomes 
law  only  when,  in  addition  to  the  precept,  there  is  affixed  a 
penalty  for  transgression."  (Haven.  Moral  Philosophy,  p. 
289.     Cf.  Blackstone  I,  57;  infra,  n.  202). 


INTRODUCTIOX.  11 

ence  to  immediate  occasions,  they  were  dictated  rather 
by  blind  popular  impulse,  than  by  the  logical  conclu- 
sions reached  by  the  calm  deliberations  of  legisla- 
tive wisdom.  And  although  it  is  in  the  interest  of 
the  people,  themselves  subject  to  the  laws,  to  make 
them  as  mild  as  possible,  yet  inasmuch  as  the  fear 
of  being  injured  is  always  more  prevalent  than  the 
intention  of  injuring,  people  are  usually  influenced 
by  first  impressions,  and  enact  cruel  laws. — We  must 
not,  however,  be  understood  to  imply  that  the  early 
laws  were  dictated  by  the  free  will  of  the  people. 
On  the  contrary,  in  the  first  stages  of  the  social 
development  of  mankind,  individuals  were  the  law- 
makers.* But  these  law-makers  were  themselves  con- 
trolled by  the  influences  which  prejudiced  the  popu- 
lar mind.  The  natural  consequence  was  that  exces- 
sive severity  prevailed,  which,  in  the  progress  of  time, 
was  meliorated  principally  by  the  evasion  of  those 
very  laws  which  originally  were  enacted  for  the  con- 
servation of  the  safety  and  peace  of  society.  The  oppo- 
site extreme,  undue  laxity,  succeeded,  and  destroyed 
the  principles  of  justicCo  Thus  we  are  told  that, 
''as  the  manners  of  Eome  were  insensibly  polished, 


*  Cf.  Beccaria,  §  34.— If  we  casta  glance  at  history,  we  shall 
see  that  laws  which,  properly  speaking,  are  or  ought  to  be  com- 
pacts between  free  people,  have  generally  been  nothing  but  the 
instrument  of  the  passions  of  some  few  men,  or  the  result  of  some 
accidental  and  transitory  necessity.  They  have  never  been 
dictated  by  the  unimpassioned  judge  of  human  nature  who  is 
able  to  concentrate  the  actions  of  a  multitude  of  men  into  a  single 
point  of  view,  and  to  consider  them  from  that  point  only:— 
The  greatest  happiness  for  the  greatest  number  (\h.  Introduction). 


12  INTRODUCTION. 

the  criminal  code  of  Decemvirs  was  abolished  bj 
the  humanity  of  the  accusers,  witnesses  and  judges, 
and  impunity  became  the  consequence  of  immoderate 
rigor."*  The  same  was  the  result  of  the  bloody  en- 
actments of  Draco, ^  who  affixed  the  penalty  of  death 
to  almost  all  crimes  alike — to  petty  thefts,  for  in- 
stance, as  well  as  to  sacrilege  and  murder, — and 
being  asked,  why  he  made  death  the  punishment  of 
most  oiFenses,  answered,  "Small  ones  deserve  it,  and 
I  can  find  no  greater  for  the  most  heinous."^ 

§  3.  But  we  need  not  climb  so  very  high  on  the  ladder 
of  time  in  search  of  harsh  and  severe  laws.  The  old 
codes  of  most  civilized  nations  of  the  modern  epoch 
are  almost  as  liberal  in  dispensing  capital  punishment. 

'"  Gibbon  c.  XLIY. — Excessive  severity  of  laws  hinders  their 
execution.  "Where  the  punishment  surpasses  all  measure,  people 
are  obliged  to  prefer  impunity  to  the  laws  (cf.  Montesquieu,  B. 
VI,  0.  XIII). 

t  "The  laws  of  Draco,  written — says  Demades — not  with  ink, 
but  with  blood,  had  the  same  fate  as  usually -attends  all  violent 
things.  Sentiments  of  humanity  in  the  judges,  compassion  for 
the  accused,  whom  they  were  wont  to  look  upon  rather  as  un- 
fortunate than  criminal,  and  the  apprehensions  the  accusers 
and  witnesses  were  under  of  rendering  themselves  odious  to 
the  people,  all  concurred  to  produce  a  remissness  in  the  execu- 
tion of  the  laws  which,  by  that  means,  in  the  process  of  time, 
became  as  it  were  abrogated  through  disuse:  and  thus  an  exces- 
sive rigor  paved  the  way  for  impunity." — Eollin,  Ancient  His- 
tory, B.  V,  Art.  YIII. 

'Plutarch,  Life  of  Solon.  Conf.  Smith's  History  of  Greece, 
C.  X,  6. — Schiller  (Legislation  of  Lycurgus  o,ncl  Solon)  would 
account  for  this  severity  by  the  fact  that  "Draco's  laws  are  the 
attempt  of  a  beginner  in  the  art  of  governing  men ;"  but  harsh 
legislation  was  not  a  peculiarity  of  the  earliest  legislators. 


INTRODUCTION.  13 

Nor  may  we  hold  up  as  examples  deserving  universal 
condemnation,  those  codes  which  have  for  their  chief 
elements  the  decrees  of  the  Civil  Law  of  Rome — the 
tablets  of  the  decemvirs/  the  Pandects  and  the  Insti- 
tutes, where  sanguinary  despotism  wielded  undisputed 
sway.  The  code  of  England,  where  public  legisla- 
tion has,  for  centuries  back,  been  deeply  influenced 
by  popular  opinion,  was  down  to  a  comparatively  re- 
cent date,  extremely  cruel  and  blood-thirsty.  Black- 
stone  states  that  in  his  time,  "among  the  variety  of 
actions  ivMch  men  are  daily  liable  to  commit,  no  less 
than  one  hundred  and  sixty  were  held,  by  act  of  parlia- 
ment, to  be  felonies  without  benefit  of  clergy;  or,  in 
other  words,  to  be  worthy  of  instant  death.  "^ — It  is 

**  Montesquieu  (B.  VI,  c.  XV)  sa3-s  of  them,  "The  law  of 
the  twelve  tables  is  full  of  very  cruel  punishment,"  and  the 
reader  of  these  pages  will  find. abundant  proof  to  convince  him 
not  only  of  the  truth  of  Montesquieu's  statement,  but  also  that 
subsequent  Roman  legislation  was  almost  equally  as  cruel, 

9  Commentaries  IV,  8. — This  was  written  about  the  year 
1760,  and  in  1809 — says  the  American  annotator  to  Arnold's 
Lectures  on  Modern  History  (n.  9  ad  L,  V) — when  Sir  Samuel 
Romilly  devoted  himself  to  the  arduous  and  admirable  labor 
of  bringing  about  a  reformation  of  the  criminal  law  of  Eng- 
land, it  is  stated  by  Mr.  Alison,  in  his  History  of  Europe  (chap. 
60),  that  the  punishment  of  death  was  by  statute  affixed  to  the 
fearful  and  almost  incredible  number  of  above  six  hundred  differ- 
ent crimes,  "while  the  increasing  humanity  of  the  age  had  in- 
duced so  wide  a  departure  from  the  strict  letter  of  the  law,  that 
out  of  1782  persons  capitally  convicted  at  the  Old  Bailey  in 
seven  years,  from  1803  to  1810,  only  one  had  been  executed." 
*  *  *  Well  has  Landor,  in  one  of  Ivis  'Imaginary  Conversa- 
tions,' put  these  words  into  the  mouth  of  Romilly:  "I  am 
ready  to  believe  that  Draco  himself  did  not  punish  so  many 


14  INTRODUCTION. 

true  that  the  criminal  laws  of  the  United  States  are 
incomparably  more  lenient  and  humane,  visiting  with 
death  nine  crimes  only,  and  that  the  penal  code  of  this 
country  is,  compared  with  the  enactments  of  other 
nations,  justly  held  up  as  an  example  of  moderation,  of 
the  wise  accommodation  of  the  spirit  of  justice  to  the 
philanthropic  views  resulting  from  an  advance  of  civili- 
zation. But  we  must  not  forget  that  the  laws  of  this 
country  are  comparatively  new,  that  they  carry  within 
them  the  practical  wisdom  of  tens  of  centuries,  that 
they  are  the  very  latest  out-growths  of  civilization. 
§  4.  In  view  of  these  facts,  how  greatly  must  our 
curiosity  become  excited  when  we  are  assured  that 
''it  would  not  be  easy  to  find  a  more  humane,  almost 
refined,  penal  legislation,  from  the  days  of  the  old 
world  to  our  own,  "^'^  than  that  of  the  ancient  Hebrews. 

oifenses  with  blood  as  we  do,  although  he  punished  with  blood 
every  one.  We  punish  with  death  certain  offenses  which  Draco 
did  not  even  note  as  crimes,  and  many  others  had  not  3'et  sprung 
up  in  society."  It  is  only  lately  [this  was  written  in  1845,]  that 
the  reform  begun  by  Romilly,  which  the  sad  catastrophe  of  his 
life  prevented  his  witnessing,  has  been  completed  so  far  as  to 
limit  capital  punishment  very  much  to  crimes  affecting  directly 
or  indirectly  the  security  of  life,  instead  of  property.  In  1837, 
Parliament  (by  the  acts  of  7th  Will.  lY,  and  1st  Victoria) 
removed  the  punishment  of  death  from  about  200  oft'enses,  and 
it  is  now  left  applicable  to  treason,  murder  and  attempts  at 
murder,  arson  with  danger  to  life,  and  to  piracies,  burglaries, 
and  robberies,  when  aggravated  by  cruelty  and  violence. 

'°  Deutsch  on  "The  Talmud"  in  the  London  Quarterly  Review 
for  Oct.  1867. — "In  no  other  nation  were  ever  current  such 
simple  forms  of  criminal  investigation,  such  ample  safeguards 
for  the  accused ;  nowhere,  so  much  as  here,  has  conscientious 
practice  so  far  surpassed  a  highly  liberal  theory,  above  all,  in 


INTRODUCTION.  15 

From  the  following  paragraphs  it  will  be  seen  that 
the  system  of  criminal  jurisprudence  of  the  Ancient 
Hebrews,  as  recorded  in  the  Talmud  and  in  contem- 
poraneous Rabbinic  literature,  was  one  which  enforced 
civil  order  and  secured  the  safety  and  peace  of  society 
by  mildness  and  consideration,  tempering  justice  with 
a  love  of  humanity,  and  all  this  in  an  age  of  savagery 
and  violence,  of  wars  and  uncertainty;  in  an  age  when 
among  surrounding  nations  "the  life  and  death  of  a 
citizen  was  determined  with  less  caution  and  delay 
than  the  most  ordinary  question  of  covenant  and  inher- 
itance.""  In  our  opinion,  even  though  the  judiciary 
system  of  the  ancient  Hebrews,  preserved  in  the  Tal- 
mud and  other  Rabbinic  writings,  be  not  acknowledged 
the  exemplar  of  polity  among  modern  governments, 
or  as  the  universal  fountain  for  general  legislation, 
it  certainly  deserves  better  treatment  at  the  hands  of 
the  critic  than  the  generality  of  even  modern  writers 
are  willing  to  accord  to  it.  The  Christian  world  stig- 
matizes the  Talmudic  system  as  ''cruel,  vindictive, 
sanguinary;"  but  it  does  so  without  good  reason, — aye, 
without  attempting  to  find  a  reason  !^^  But  we  shall 
let  the  Talmud  speak  for  itself.  ^^ 

point  of  humanity." — Vargha,  Defense  in  Criminal  Cases,  c. 

I,  §  1. 

»  Gibbon.  Rome,  c.  XLIV. 

'2  It  is  refreshing  to  tlie  candid  student  to  meet  with  an  un- 
biased opinion  of  Ancient  Jewish  laws  and  criminal  procedure, 
and  we  therefore  transcribe  a  few  more  lines  from  Yargha  (1.  c). 
"  J^o  one  of  the  old  systems  of  procedure  for  the  punishment  of 
crime  was  more  humane  than  the  Jewish;  and  j'et  none  has 
been  more  grievousl^^  calumniated,  for  now  nearh^  twenty  ceu- 


16  INTRODUCTION. 

§  5.  Only  in  the  last  half  of  last  century,  and  in 
the  face  of  constitutional  government,  we  hear  the  great 
institutional  writer  and  commentator  crying  out,  in 
disgust  and  horror,  against  the  inequality  and  cruelty 
of  the  penal  code  of  his  country.  He  observes:  "A 
multitude  of  sanguinary  laws  (besides  the  doubt  that 
may  be  entertained  concerning  the  right  of  making 
them)  do  likewise  prove  a  manifest  defect  either  in  the 
wisdom  of  the  legislative,  or  the  strength  of  the  exe- 
cutive power.  It  is  a  kind  of  quackery  in  govern- 
ment, and  argues  a  want  of  solid  skill,  to  apply  the 
same  universal  remedy,  the  ultimum  siqjplicium,  to 
every  case  of  difficulty.  It  is,  it  must  be  owned, 
much  easier  to  extirpate  than  to  amend  mankind; 
yet  that  magistrate  must  be  esteemed  both  a  weak 

turies,  because  of  its  cruelty  as  exposed  in  the  alleged  trial  of 
Jesus.  The  Christian  nations,  persecutors  of  the  Jews  as  they 
were,  must  needs  even  in  this  deiJartment,  distort  and  slander  the 
institutions  of  the  dispersed  people,  unwilling,  as  they  were, 
to  acknowledge  that  its  laws  far  surpassed  their  own  in  wisdom 
and  in  moderation." 

'3  The  name  of  the  gigantic  work  w^hose  compilation  extends 
over  a  thousand  years,  from  which  mainly  the  following  sylla- 
bus is  compiled,  is  derived  from  the  Hebrew  radix  Lamad — to 
learn  (i.  e.  study,  in  contra-distinction  to  the  Pentateuch  gen- 
erally styled  Torah — Law),  and  is  the  collective  name  of  the 
Mishnah  (a  kind  of  second  law,  Deuterosis)  and  Giiemara  (dis- 
cussion, complement,  doctrines,  its  radix  Gamar  answering  to 
either). — The  Talmud  is,  in  the  full  sense  of  the  word,  the  liter, 
ature  of  the  ancient  Jews.  It  treats  of  religious,  civil  and 
criminal  law;  of  history,  mathematics,  astronomy,  medicine, 
metaphysics,  theosophy. — For  a  comprehensive  view  of  this 
repository  of  ancient  Jewish  art  and  science  the  reader  is 
respectfully  referred  to  the  appended  excursus. 


INTRODUCTIOX.  17 

and  cruel  surgeon,  who  cuts  oft'  every  limb  which 
through  ignorance  or  indolence  he  will  not  attempt 
to  cure."^* 

§  6.  These  were  Blackstone's  cries  as  late  as  one 
hundred  years  ago;  while  the  Talmud,  some  eighteen 
hundred  years  ago,  stigmatized  the  Synhedrion  (Synod, 
Court)  that  condemned  to  death  one  human  being  in 
the  course  of  every  seven  years,  as  a  murderous  tri- 
bunal; and  R.  Elazar  ben  Azaria  considers  it  so,  if 
it  passes  a  sentence  of  death  once  in  seventy  years  !'^ 
Moreover,  Blackstone  merely  advocates  the  adoption 
of  a  scale  of  crimes  and  of  a  corresponding  scale  of 
penalties,'®  but  does  not  deprecate  the  infliction  of 
capital  punishment  ''when  the  offender  appears  incor- 
rigible;"^^ while  such  leaders  among  the  Jews  as  R. 
Tryphon  and  R.  Akiba  declare  that,  had  they  been 
members  of  the  Synhedrion  during  the  period  of  its 
full  judicial  j)Ower,  a  sentence  of  death  should  never 
have  been  passed  l^^  These,  however,  are  views  of 
individuals  only;  let  us  compare  laws. 

"  Commentaries  IV,  17.  One  might  fancy  he  hears  the 
plaints  of  Epicurus:  "As  we  formerly  suffered  from  wicked- 
ness, so  we  now  suffer  from  the  laws.'' — Tacitus,  Annal.  Ill,  25. 

'^  Maccoth  7^  ;  Maimonides,  H.  Sanhedriu  XIV,  10. 

'«  L.  c.  p.  18. 

"  L.  c.  p.  12.  Incorrigibility  "may  be  collected  either  from 
the  perpetration  of  some  one  crime  of  deep  malignity,  or  from 
a  repetition  of  minuter  offenses.'' 

''^  Maccoth  1.  c. — i.  e.  by  a  .searching  and  perplexing  exami- 
nation of  the  accusing  witnesses,  the}'  would  have  rendered  a 
legal  conviction  next  to  impossible.     (Cf.  infra.  §  91,  n.  304). 

While  the  Eabbis  were  quite  unacquainted  with  the  modern 
refined  sentiment  which  represents  the  reformation  of  the  crim- 
2 


18  INTRODUCTION. 

§  7.  We  have  just  seen  that  in  England,  only  one 
hundred  years  ago,  the  different  offenses,  which  men 

inal  as  the  only  legitimate  end  of  punishment;  while  they  had 
no  sympathy  with  that  mawkish  philanthropy  which  pours 
forth  floods  of  tears  over  the  fate  of  the  hardened  perpetrator 
of  crime,  so  that  it  has  scarcely  one  left  to  mingle  with  those 
of  the  unhappy  victims  of  his  villainies, — they  shrunk  from 
inflicting  the  death  penalty,  and  endeavored  to  secure  the  safety 
and  peace  of  society  and  the  vindication  of  law  and  justice  by 
other  means.     (Cf.  infra,  §  24). 

There  are  many  jurists  and  moralists  to-day  who  would  gladly 
see  capital  punishment  abolished,  and  that  not  because  they 
doubt  the  right  of  the  law  to  impose  it,  but  because  they  con- 
scientiously believe  that  it  is  not  an  adequate  retribution  for 
certam  hemous  crimes.  On  the  contrary,  owing  to  the  circum- 
stances usually  consequent  upon  conviction,  death  seems  to  be 
a  blessing  to  many  a  culprit.  Out  of  the  numbers  of  criminals 
that  are  annually  despatched  by  warrant  of  law,  how  many  do 
not  ascend  the  scaff'old  shouting  with  joy  that  they  are  "going 
to  heaven?"  How  many  are  not  made  to  believe  that,  with 
the  suspension  of  their  bodies,  their  spirits  hie  to  the  realms  of 
eternal  bliss?  In  fact,  death  on  the  gallows  is  to  some  a  passport 
to  heaven!  Imagine  a  man  thoroughly  depraved  and  "fallen 
from  grace,"  His  days  he  spends  in  devising  evil;  his  evenings, 
in  the  practice  of  the  grossest  immoralities;  his  midnights,  in 
despoiling  his  neighbors.  He  is  apprehended,  legally  tried, 
duly  convicted  and  judicially  sentenced  to  the  gallows;  but 
also  given  ample  time  for  "repentance  and  regeneration,"  Jus- 
tice dons  the  cloak  of  mercy.  Instead  of  being  executed  soon 
after  conviction  for  the  purpose  of  example,  the  culprit  is 
placed  in  a  cell  accessible  to  every  pious  minister  of  the  Gospel, 
who  does  not  delay  offering  to  "the  victim  of  the  law"  the 
consolation  of  religion.  Almost  day  and  night  he  is  attended 
by  godly  men  who  cram  his  mind  with  metaphysical  disserta- 
tions on  the  efficacy  of  prayer  and  repentance,  and  on  the  eter- 
nal mercy  of  God  whose  arms  are  ever  open  to  receive  the 


INTRODUCTION.  19 

are  daily  liable  to  commit,  and  for  the  commission  of 
each  of  which  the  highest  j^enalty  was  inflicted,  num- 
bered not  less  than  one  hundred  and  sixty.  Among  the 
ancient  Hebrews — where  idolatry,  witchcraft,  human 
immolation,  blasphemy,  false  prophecy,  and  other 
transgressions  of  a  purely  religious  character,  which 
in  our  age  men  are  not  liable  to  commit  daily,  were 
considered  capital  crimes — the  entire  number  of  capital 
offenses  amounted  to  thirty-six  only,^'  or  to  less  than  one- 
fourth  of  the  number  of  offenses  for  which  death  was 
the  punishment,  by  the  law  of  a  constitutional  gov- 
ernment, in  which  the  peoj)le  had  voice  and  influence, 
and  which  did  not  have  to  take  into  consideration 
idolatry,  human  sacrifices  and  the  like. 

repentant  sinner,  especially  such  an  one  as  the  prisoner  himself. 
Thus  continuall}',  and  for  weeks,  worked  upon,  he  is  gradually 
made  to  fancy  that  a  gracious  reception  awaits  him  beyond 
the  grave.  Indeed  he  even  asserts  that  he  would  not  now 
exchange  his  lot  for  that  of  any  man  who,  however  honest  and 
good  a  life  he  may  have  led,  is  not  as  well  prepared  to  die  as 
himself, — is  death  a  punishment  to  such  a  man?  Is  it  not 
rather  a  deliverance  from  a  prospective  life  of  gloomy  thoughts 
and  frightful  dreams,  and  of  remorse  for  a  life  of  villainy  and 
shame?  And  the  worst  of  it  is  that  this  picture  is  not  drawn 
from  fancy,  but  from  careful  observation. — May  the  advocates 
of  thejus  gladii  earnestly  think  about  this. 

'9  Maimon,  H.  Sanh.  XV,  12.  Cf.  infra  §  25.— We  say  that 
the  number  of  capital  offenses,  according  to  Talmudic  law, 
inclusive  of  the  several  deadly  sins  of  a  purely  religious  char- 
acter, amounted  to  thirty-six;  but  on  proper  classification  of 
the  various  offenses  under  their  respective  general  headings,  we 
find  twehe  only,  and  even  less  than  that  (v.  infra  §  30  and  note 
101);  and  leaving  out  of  consideration  the  crimes  of  idolatry, 
witchcraft,  blasphemy,  violation  of  the  Sabbath  and  false  pro- 


20  INTRODUCTION. 

§  8.  As  a  still  greater  proof  of  the  great  humanity 
of  Talmudic  jurisprudence,  we  mention  the  early  abro- 
gation of  the  lex  talionis,  with  which  one  frequently 
meets  in  the  legislations  of  most  ancient  nations, 
and  traces  of  which  are  discernible  on  the  pages  of 
the  codes  even  of  some  modern  countries.  The  forfeit 
of  an  eye  for  an  eye,  a  tooth  for  a  tooth,  a  limb  for  a 
limb,  was  rigorously  exacted  by  the  Romans.^"  Also 
''by  the  ancient  law  of  England,  he  that  maimed  any 
man,  whereby  he  [the  latter]  lost  any  part  of  his 
body,  was  sentenced  to  lose  the  like  part:  membrum 
pro  membro."^^  This  unequal  and  inhuman  princi- 
ple, though  literally  prescribed  by  Moses,^^  was  early 
abolished  by  a  Rabbinic  law  substituting  a  pecuniary 
equivalent. ^^     In  the.same  manner  the  Talmud  abol- 

phecy — all  sins  against  God, — we  find  the  number  of  crimes 
punishable  with  death  by  Talmudic  jurisprudence,  dwindle 
down  to  eight,  or  one  less  than  that  on  the  code  of  the  United 
States ! 

«•  Gibbon  1.  c. 

2'  Blackstone  IV.  206. 

22  Exodus  XXI,  23  sq. 

23  Sifra  Emor  §  20 ;  B.  Kama  83"  sq. ;  Maimon.  H.  Hobel  I, 
3-5. — And  even  this  commutation  the  Talmudists  did  not  auth- 
orize individuals  to  determine  for  themselves,  and  thus  they 
prevented  every  man  from  becoming  at  once  client,  judge  and 
avenger  in  his  own  cause.  In  every  instance  of  the  application 
of  this  principle  it  was  the  duty  of  the  regularly  constituted 
judiciary  to  adjudge  and  enforce  compliance  (Mekhilta  Nezikin 
§  8;  B.  Kama  91%  et  al.     Cf.  infra  n.  148,  355). 

Even  Kant,  the  most  zealous  advocate  of  the  theory  of  retali- 
ation as  the  only  principle  of  penal  law  aflbrding  a  measure  for 
punishment,  is  forced  to  admit  its  inadequacy  in  certain  cases 
of  crime,  and  its  inapplicability  to  others ;  and  finally  advises  us 


INTRODUCTION.  21 

ished  the  Mosaic  law  ordaining,  that  the  hand  of  a 
woman  committing  a  certain  immodest  act,^*  should 
he  cut  off,  by  substituting  a  jDecuniary  forfeiture.^ 

§  9.  Above  all  and  most  vividly  is  the  clemencyj 
pervading  the  ancient  Hebrew  code,  manifested  in  the 
rules  by  which  the  judges  were  to  direct  all  proceed" 
ings  against  the  accused.  Imbued  with  the  humane 
maxim:  "Whosoever  occasions  the  destruction  of  a 
single  life,  is  as  great  a  sinner  as  if  he  had  destroyed 
the  whole  world;  and,  on  the  other  hand,  whoso 
brings  about  the  preservation  of  a  single  life,  is  as 
meritorious  as  if  he  had  preserved  the  whole  world,"  ^ 
the  Rabbis,  sitting  in  judgment  over  a  human  being, 
laid  every  possible,  but  legitimate  obstacle  in  the  way 
of  conviction.  Almost  every  page  of  the  Talmud, 
treating  of  criminal  law,  testifies  that  the  Hebrew  sages 
truly  and  conscientiously  believed  in,  and  practised 
according  to  their  doctrine:  "Whosoever-  compassion- 
ates a  human  being  obtains  compassion  from  Hea- 
ven."  ^  Accordingly  they  employed  every  legal  means 
to  arrive  at  an  acquittal  of  the  prisoner,  to  save  the 
life  of  the  accused.  It  is  true,  occasionally  great 
rigor  was  exercised  under  the  Talmudic  dispensation.^ 

to  seek  for  a  generic  notion  only  of  the  offense,  and  to  apply 
that  to  the  criminal,  (Kechtslehre,  Part  I,  App.  5).  Thus  also 
Blackstone  (cf.  B.  IV,  p.  12,  sq.) 

^  Deut.  XXV,  11-12. 

■»  Sifre  II,  §  293 ;  B.  Kama  28". 

^  B.  Kama  11^;  Sanh.  37^     Cf.  infra  §  79. 

«  Sabbath  15 1^ 
■  **  ''There  is  no  positive  law,  how  equitable  soever,  that  may 
not  be  sometimes  capable  of  injustice    *  •*    *    And  indeed  the 


22  INTRODUCTION. 

For  instance,  it  is  reported  that,  for  the  simple  sin  of 
riding  a  mule  on  the  Sabbath,  the  convict  was  sen- 
tenced to  suffer  death  by  stoning;^'  and  another,  for 
a  gross  violation  of  the  laws  of  modesty,  to  be  flagel- 
lated.^" But  such  instances  are  very  rare  in  the  Tal- 
mud, and  it  is  doubtful  whether  their  equals  are  to 
be  found  in  the  acts  of  the  Synhedrion.  These, 
indeed,  are  said  to  have  occurred  at  a  time  when  Gre- 
cian invasion  had  demoralized  the  populace,  when  the 
authority  of  the  Rabbis  seemed  to  be  unable  to  check 
the  rapid  progress  of  wickedness, — in  short,  when 
extreme  rigor  alone  could  hope  to  effect  a  wholesome 
reformation  in  the  manners  of  the  masses. ^^  In  gen- 
eral, however,  the  spirit  pervading  the  criminal  juris- 
prudence of  the  ancient  Hebrews — if  not  tending  to- 
ward the  total  abolition   of  capital  punishment — is 

experience  of  every  age  may  serve  to  vindicate  the  assertion : 
no  law  could  be  more  just  than  that  called  'Icesce  maje.stis,''  when 
Eome  was  governed  by  emperors.  It  was  but  reasonable  that 
every  conspiracy  against  the  administration  should  be  detected 
and  punished ;  yet  what  terrible  slaughter  succeeded  in  conse- 
quence of  its  enacting;  proscriptions,  strangliugs,  poisonings, 
in  almost  every  family  of  distinction,  yet  all  done  in  a  legal 
way;  every  criminal  had  his  trial,  and  lost  his  life  by  a  major- 
ity of  witnesses."— Goldsmith,  Letters  of  a  Ch.  Philos.  LXXX. 

29  Cf.  infra  §  26. 

30  Yebamoth  90b ;  Sanh.  46^ 

3'  Ibid.  Cnf.  infra  §§  37,  73.— Sir  Matthew  Hale  writes :  "When 
offenses  grow  numerous,  frequent  and  dangerous  to  a  Kingdom 
or  State,  destructive  and  highly  pernicious  to  civil  societies, 
and  to  the  great  insecurity  and  danger  of  the  Kingdom  or  its 
inhabitants,  severe  punishment  and  even  death  itself  is  necessary 
to  be  annexed  to  laws  in  many  cases  by  the  prudence  of  law- 
givers."— Blackstone  lY,  9. 


INTRODUCTION.  23 

certainly  humane  and  considerate.  While  seeking  to 
do  justice  and  punish  crime,  in  order  to  insure  the 
safety  and  peace  of  society,  the  Rabbis  endeavored  to 
save  life  and  limb  whenever  it  was  in  any  way  pos- 
sible.^^ 

§  10.  Our  favorable  opinion  regarding  the  humane 
tendency  of  the  system  of  Talmudic  criminal  juris- 
prudence will  be  confirmed  and  strengthened  in  the 
course  of  our  enquiry  concerning  the  rules  and  usages 
by  which,  according  to  the  Rabbis,  were  to  be  directed 
the  trial  and  execution  of  the  criminal  under  that 
dispensation — a  dispensation  the  dissertations  on 
which  '^have  exhausted  so  many  learned  lives,  and 
clothed  the  walls  of  such  spacious  libraries," 

In  the  following  pages  we  purpose  to  furnish  a  com- 
prehensive, though  succinct  syllabus  of  the  principal 
penal  statutes  as  established  by  the  ancient  Jewish 
teachers,  and  preserved  in  the  Talmud  and  in  con- 
temporaneous Rabbinic  literature.  Eschewing  all 
platitudes  and  logomachies  with  which  the  laws  are 
strangely  mixed  up,  we  shall  furnish  a  clear  insight 
into  a  system  of  jurisprudence  which  has  occupied 
thousands  of  great  minds  in  ages  past,  and  which  is 
almost  a  sealed  Book  to  the  present,  though  it  con- 
tains abundant  food  for  thought  even  for  the  future. 

The  whole  mass  of  laws  we  propose  to  classify 
under  the  following  four  captions: 

=^2  By  Justice  I  understand  nothing  but  the  bond  which  is  neces- 
sary for  the  conservation  of  individual  interests,  and  for  pre- 
venting them  from  relapsing  into  their  original  state  of  dissocia- 
tion. All  penalties  overstepping  the  bounds  necessary  for  the 
preservation  of  this  boud,  are  naturally  unjust.  (Beccaria  §  2). 


24  INTRODUCTION. 

I.   Crimes  and  Punishments. 
II.   The  JSynhedrion. 

III.  The  Trial. 

IV.  The  Execution. 

Each  of  these  general  divisions  will,  oi  course,  have 
to  be  subdivided  under  special  heads  or  sections,  inas- 
much as  there  are  different  crimes  and  different  pen- 
alties, different  cases  and  different  courts.  But  while 
our  aim  shall  always  be  to  lay  before  our  readers  a 
clear  and  correct  portraiture  of  our  intricate  subject, 
we  shall  endeavor  to  be  brief,  and  not  tax  their 
patience  too  much. 


I.    CRIMES  AND  PUNISHMENTS. 
1.    As  TO  Number. 

§  11.  A  person  acquainted  with  the  hermeneutic 
rules,  by  the  application  of  which  the  ancient  Hebrew 
exegetists  and  jurists  plausibly  established,  on  Scrij^- 
tural  dicta,  decisions  and  decrees  concerning  each  and 
all  of  the  varied  situations  in  life,^  a  person  familiar 

33  Cf.  Ai^penclix — The  Talmud  is  avowedly  based  on  the  firm 
belief  in  the  permanence  and  immutability  of  the  Scriptural  laws 
(cf.  infra  n.  100).  But  it  must  be  remembered  that  there  can  be 
but  little  relation  between  human  actions  that  are  constantly 
changing,  and  laws  that  are  fixed  and  immobile.  We  see  almost 
daily  that,  however  large  the  numberof  our  lawsis,  it  still  holds 
no  manner  of  proportion  to  the  diversity  of  cases,  and  it  is  safe 
to  prophesy  that  the  multiplication  of  our  inventions  will  never 
equal  the  variety  of  questions.  Therefore  have  the  Rabbis  estab- 
lished exegetical  rules,  comprehensive  and  elastic,  by  which 
occurrences  of  the  future  might  be  coupled  and  compared  with 
those  already  decided  and  recorded,  and  judgment  passed  in  ac- 
cordance with  the  circumstances.  According  to  those  rules,  a 
great  many  laws  and  decisions  (HalakhotJi),  especially  a  number 
of  those  treating  of  capital  punishment,  Avere  established  long 
after  the  Jus  gfadii  had  been  taken  from  the  Jews  by  the  Romans 
(cf.  infra  n.  224  sq.),  and  were,  therefore,  never  applied  practi- 
cally. Hebrew  jurisprudence  was  deprived  of  the  power  of  en- 
forcing its  enactments  decades  before  the  beginning  of  the  Chris- 
tian era,  but,  as  a  science,  it  continued  to  be  studied  and  elabo- 
rated for  centuries  thereafter,  the  Rabbinic  maxim  being: 
"  Study,  philosophize,  and  thou  shalt  be  rewarded  "  (cf.  infra  n. 
87,  109). 

25 


26  CRIMES    AND    PUNISHMENTS. 

with  Rabbinic  readiness  to  multiply  ''  guard-laws, "  ^ 
might  easily  suppose  tliat,  in  the  Talmud,  there  is  no 
end  to  the  number  of  penal  offenses.  And,  indeed,  our 
impression  receives  apparent  confirmation,  when  we 
learn  that  the  Talmud  finds  in  the  Pentateuch  six  hun- 
dred and  thirteen  ordinances, — "of  these,  three  hun- 
dred and  sixty-five  (corresponding  to  the  number  of 
days  in  the  solar  year)  are  prohibitive,  and  the  remain- 
ing two  hundred  and  forty-eight  (corresponding  to 
the  number  of  bones  in  the  human  body),  are  positive 
commands,"  ^  each  of  which  the  Israelite  must  strict- 
ly observe,  or  be  accounted  a  transgressor,  and  sub- 
jected to  punishment! 

§  12.  Nevertheless,  without  fear  of  tenable  contra- 
diction, we  declare  such  an  idea  to  be  altogether  un- 
warranted by  the  spirit  of  Talmudic  jurisprudence. 
Talmudic  jurisprudence  inflicts  punishment  for  such 
transgressions  only  as  are  accompanied  by  bodily  ac- 
tion.^®    Now,  as  violations  of  laws  may  be  committed 

^  Sepeslegis.  The  Kabbinic  term  thus  rendered,  is  S^iag — fence, 
i.e.  outworks,  barriers  to  protect  and  maintain  inviolable  the 
ordinances,  both  Biblical  and  Talmudical. 

=»  Maccoth  23''. 

3«  Sanh.  63%  et  al. — Among  ancient  nations  we  find  instances, 
where  mere  fJwughts  were  punished  capitally.  Thus,  because 
Marsyas  dreamed  that  he  had  cut  Dionysius's  throat,  the  tyrant 
put  him  to  death,  arguing  that  he  would  never  have  dreamt  of 
such  a  thing  by  night,  had  he  not  thought  of  it  by  day  (Montes- 
quieu, B.  XII,  c.  XI).  By  Talmudic  law,  only  actions  are  sub- 
ject to  punishment.  Exceptions  are :  taking  vain  oaths,  substi- 
tuting an  inferior  offering  for  something  dedicated,  and  cursing 
by  the  ineffable  name  of  God,  which,  though  not  accompanied  by 
bodily  action,  subject  the  offender  to  the  penalty  of  flagellation 


AS    TO    NUMBER.  27 

in  two  ways,  either  by  omission  or  commission:  by 
not  doing  that  which  ought  to  be  done,  or  by  doing 
that  which  ought  not  to  be  done — it  is  clearly  seen 
that,  according  to  this  principle,  no  punishment  can 
be  inflicted  for  the  violation  of  any  or  all  of  the  two 
hundred  and  forty-eight  positive  commands,  and  of  a 
large  number  of  the  prohibitive,  where  the  transgres- 
sion is  not  accomplished  by  means  of  bodily  action.^ 


(Shebuoth  21%  Temurah  3").  The  same  is  the  rule  iu  some 
cases  of  false  testimony  and  slander  (cf.  infra  §  31,  n,  62,  323). 
^  Thus,  with  reference  to  the  instigator  to  apostas}-,  the  Rabbis 
find  in  the  Scriptural  dictum  (Deut.  XIII,  9)  the  following  five 
prohibitive  precepts :   1.  Not  to  love  him  {Abah — to  long  for) ; 

2.  Not  to  cease  hating  him  (Shama — to  listen  to  complacently) ; 

3.  Not  to  have  mere}'  on  him ;  4.  Not  to  defend  liim ;  5.  Not 
to  withhold  condemning  testimony  against  him  (Sifre  II,  §  89  ; 
Sanh.  29%  33%  67%  85'^).  Of  these,  only  a  transgression  of  the 
third  may  become  subject  to  punishment,  for  only  that  one  may 
be  attended  by  bodil}'  action,  as  when  the  culprit  is  in  danger 
and  one  saves  him. — Nor  is  an}'  punishment  attached  to  the 
transgression  of  a  general  prohibition,  not  followed  by  specifi- 
cations {Lav  shebikJdaloth).  E.  g.  on  the  Biblical  prohibition : 
"Ye  shall  not  eat  with  the  blood"  (Lev.  XIX,  26),  the  Talmud 
bases  a  number  of  prohibitions  ;  to  wit :  1.  Not  to  eat  of  an  ani- 
mal until  after  all  its  blood  has  passed  out ;  2.  Not  to  eat  of  the 
sacrifice,  before  the  blood  has  been  dulj'^  sprinkled  upon  the 
altar  (cf.  Lev.  I,  5,  11,  et  al.) ;  3.  Not  to  treat  the  mourners, 
for  legally  executed  criminals,  to  the  breakfast  customary  in 
other  cases  of  death  (cf.  infra  §  132) ;  4.  That  the  judges  eat 
nothing  on  the  day  they  order  the  shedding  of  a  man's  blood, 
i.  e.  a  capital  execution  (cf.  infra  §  113).  Now.  as  all  these  pro- 
hibitions are  based  on  one  general  prohibitive  precept,  wihle 
none  is  specifically  mentioned  in  the  Bible,  the  transgressor 
may  not  be  punished,  though  the  transgression  of  each  of  them 
can  be  accomplished  by  means  of  physical  action  only  (San- 
hedrin  63^.  Pesahim  24^). 


28  CRIMES   AND    PUNISHMENTS. 

Thus,  more  than  one-half  of  the  entire  number  of  all 
possible  transgressions,  is  at  once  cut  off  from  liability 
to  punishment;  and,  in  those  remaining,  there  is  again 
a  considerable  falling  off,  owing  to  the  enactment  ex- 
empting from  corporal  punishment  the  violation — 
though  it  be  accompanied  by  physical  action — of  such 
prohibitions,  like  stealing  and  robbing,  as  may  be  ad- 
justed or  counteracted  by  restitution,^^  or  by  a  subse- 
quent compliance  with  the  positive  command  concern- 
ing the  same  case,^® 

2.  Provisos. 

§  13.  The  Talmud  adopts  all  the  conditions  and 
provisos  under  wliich  the  Mosaic  law  punishes  crime. 
Unless  the  culprit  was  fully  conscious  of  the  culpa- 
bility of  his  action,  knowing  while  committing  the 
deed,  that  it  was  against  the  spirit  and  the  letter  of 
the  law,  and  unless  his  guilt  Avas  subsequently  proved, 
beyond  the  least  doubt,  by  at  least  ttvo  trustworthy  wit- 


3^  Maccoth  16»;  Maimon.  H.  Sanh.  XYIII,  2. 

39 Ibid;  Hullin  141^. — Thus,  concerning  the  removal  of  the 
xnother-bird  together  with  her  young  ones  from  their  nest,  the 
Bible  (Deut.  XXII,  6,  7),  contains  a  prohibitive,  followed  b}-  a 
positive  ordinance;  viz:  "Thou  shalt  not  take  the  mother  with 
her  young  ones,"  and  then,  "Thou  shalt  surely  let  the  mother 
go."  Xow,  if  a  man  happens  to  violate  the  prohibition  by  cap- 
turing the  mother  together  with  her  young  ones,  he  ought  to  be 
punished  as  for  the  violation  of  any  other  negative  precept, 
when  accompanied  by  a  bodily  act;  yet  in  this  case  he  is  not 
punished,  but  made  to  comply  with  the  positive  command — to 
"let  the  mother  go."  If,  however,  after  being  duly  cautioned 
of  his  guilt  and  its  consequent  penalty  (cf.  infra  §  15),  he  still 
refuses  to  obey  the  law,  due  punishment  is  awarded  to  him. 


pttovisos.  29 

nesses,*"  and  before  a  competent  tribunal,*'  he  could  not 
be  capitally,  or  even  corporally  punished.  And  even 
where  there  appeared  a  legal  number  of  duly  qualified 
witnesses,  their  testimony  was  insufficient  to  convict,-'^ 
unless  they  agreed  not  only  with  regard  to  the  priso- 
ner's offense,  but  also  with  regard  to  the  mode  of  com- 
mitting it."^  Eabbinic  law  does  not  subject  a  person 
to  capital,  nor  even  to  corporal  punishment,  unless  all 
witnesses  charge  him  with  one  and  the  same  criminal 
act,  their  statements  fully  agreeing  in  the  main  cir- 
cumstances, and  declaring  that  they  saw  one  another, 
while  seeing  him  engaged  in  the  crime.** 

40  Cf.  infra  §  75  sq. 

"1  Cf.  infra  §  69.— The  courts  of  a  feudal  barony  or  manor 
required  neither  the  knowledge  of  positive  law,  nor  the  dictates 
of  natural  sagacity.  In  all  doubtful  cases,  and  especially 
where  a  crime  not  capable  of  notorious  proof  was  charged, 
the  combat  was  awarded;  and  God,  they  deemed,  was  the  judge. 
*  *  *  In  criminal  cases,  the  appellant  suiiered,  in  the  event 
of  defeat,  the  same  punishment  which  the  law  awarded  to  the 
offense  of  which  he  accused  his  adversary  (Hallam,  Middle 
Ages  c.  II,  P.  2). 

«  By  the  law  of  England,  an  accusation  of  treason,  the  only 
one  which  required  two  witnesses  for  the  prosecution,  was  con- 
sidered duly  authenticated  when  one  witness  testified  to  one 
overt  act,  and  the  other  to  another  overt  act  of  the  same  species 
of  treason  (Blackstone,  IV,  357). 

«Mekhilta  Mishp.  §20;  Sanh.  30'^;  Maimon.  H.  Sanh.  lY, 
1-  ibid  H.  Eduth  II,  2.— E.  g.  when  two  witnesses  accuse  a 
person  of  having  committed  idolatry,  but  one  of  them  denounces 
him  for  having  paid  homage  to  the  sun,  and  the  other  for  hav- 
ing worshipped  the  moon ;  or  when  two  witnesses  charge  him 
with  murder,  but  one  testifies  that  the  killing  was  done  with  a 
sword,  while  the  other  avers  that  it  was  with  a  dagger,— their 
testimonv  in  either  case  is  invalid. 

«  Maccoth  6»>;  Sahn.  30^    Cf.  infra  §  83,  n.  291. 


30  CRIMES    AND    PUNISHiMENTS. 

§  14.  Nor  does  Talmudic  jurisprudence  inflict  pun- 
ishment on  a  person  acting  under  constraint  (duress 
per  minas).  A  person  committing  an  unlawful  act 
while  his  will  is  not  free,  cannot  be  condemned  to  die 
for  his  misdeed.  The  fear  of  death,  threatened  in  the 
event  of  non-compliance  with  an  order  to  commit  a 
crime,  is  an  excuse  for  the  commission.  The  main 
object  of  law — the  Rabbinic  jurists  argue — is  the  pro- 
motion of  the  good  of  society,  not  its  detriment.  Scrip- 
ture*^ teaches:  *'Ye  shall  observe  my  statutes  and 
my  ordinances,  which  if  a  man  practise,  he  shall  live 
through  them,"  from  which  we  are  to  infer  that  no 
one  is  bound  to  die  through  them,  i.  e.  to  imperil  his 
existence  for  the  sake  of  their  observance.*^ 

§  15.  This  argument,  however,  the  Rabbis  do  not 
adduce  to  exempt  one  from  due  punishment  for  homi- 
cide. In  cases  of  shedding  innocent  blood,  they  do 
not  consider  duress  a  valid  excuse,*'     Neither  is  that 

«  Lev.  XVIII,  5. 

*c  Sanh.  74a ;  Maimon.  H.  Yesode  Torah  V,  1  sq.  The  modern 
legal  maxim  says.  Hominum  causa  jus  constitutum  est :  Law  is 
established  for  the  benefit  of  man. 

*'  The  Talmudic  rules  of  conduct,  in  cases  of  threatened  dan- 
ger, are  based  on  the  natural  law  of  self-preservation,  and  say  : 
"Thy  life  should  be  dearer  to  thee  than  that  of  thy  neighbor" 
(B.  Metz.  62");  '-Thy  property  thou  mayest  prefer  to  that  of 
another,"  (ibid  30'').  Accordingly,  when  two  men  are  in  dan- 
ger of  losing  their  lives,  and  one  can  save  himself  by  increas- 
ing the  danger  of  the  other,  he  may  do  so  with  impunity;  or 
when  the  property  of  two  men  is  endangered,  each  of  them  is  at 
liberty  to  save  his  own,  though  he  thereby  increases  the  danger 
of  his  neighbor's.  But  when  an  individual's  life  is  endangered, 
and  can  be  saved  only  by  imperilling  the  innocent  life  of  another, 


PROVISOS,  31 

argument  apj)lied  to  exempt  the  male  from  the  penalty 
of  the  sexual  sins,  when  he  commits  the  crime  under 
duress/^ 

person  the  case  is  difierent.  He  must  sacrifice  his  life  rather  than 
commit  the  crime.  Accordingly,  the  Talmud  (Sanh.  74^)  relates 
that  a  heathen  once  ordered  his  Jewish  subject,  on  pain  of 
death,  to  assassinate  a  certain  person.  The  terrified  Jew  applied 
to  a  Rabbi  for  legal  advice  in  his  dilemma,  and  the  Rabbi  readily 
decided  that,  in  such  cases,  one  must  sufier  himself  to  be  slain, 
rather  than  commit  so  heinous  a  crime;  for  no  mortal,  argued 
he,  can  assert  with  any  degree  of  certainty  which  of  the  two — 
the  threatened  or  the  intended  victim — is  possessed  of  the  more 
aristocratic  blood :  which  of  the  two  is  the  worthier  life. — In 
common  law  a  like  distinction  is  made  between  "positive  crimes, 
so  created  by  the  laws  of  society,"  and  "natural  ofienses,  so 
declared  by  the  law  of  God."  (Blackstone  IV,  30).  The  Tal- 
mudic  law,  however,  extends  the  divine  precept:  "Thou  shalt 
love  thy  neighbor  as  thyself"  (Lev.  XIX,  18)  even  beyond 
rejecting  the  idea  of  paying  so  dear  a  ransom  for  one's  own 
life  as  to  kill  an  innocent  person.  The  Rabbis  teach  that  when 
people  are  required  to  deliver  one  of  their  number  to  be  mur- 
dered, they  must  refuse  compliance  at  the  risk  of  their  lives 
(Tosefta  Terum.  VII,  end;  Yerush.  ib.  VIII,  §  10,  p.  46^;  Mai- 
mon.  H.  Yesode  Torah  V,  5);  and  some  recommend  the  same 
course  even  when  the  people  themselves  are  not  required  to 
have  any  hand  in  the  matter;  as  when  a  tyrant  requires  of 
them  simply  to  disclose  the  whereabouts  of  the  intended  victim 
of  his  injustice  (cf.  Magen  Abraham  ad  0.  Hayim  c.  156,  based 
on  Sabbath  33^). 

«  Yebamoth  53b.  Cf.  Exodus  R.  c.  XIV,— Its  application 
to  cases  of  idolatry  depends  on  circumstances.  Where  religious 
persecutions  prevail,  or  when  spectators  are  present,  one  must 
resist  all  constraint,  even  at  the  risk  of  his  life;  but  in  private, 
and  simply  to  gratify  the  whim  of  a  tyrant,  he  may  conform 
to  the  iniquitous  behest,  rather  than  forfeit  his  earthly  exist- 
ence (Sanh.  74'';  Ab.  Zarah  27";  Maimon.  H.  Yes.  Torah  V.  2). 


32  CRIMES    AND   PUNISHMENTS. 

§  16.  But  Rabbinic  humanity  was  not  satisfied 
even  with  all  the  i)rovisos  thus  far  enumerated.  The 
anxious  desire  of  the  ancient  Hebrew  sages  to  save 
life  and  limb,  invented  an  additional  proviso  which 
certainly  precluded  every  possibility  of  convicting  of 
crimes  which,  through  ignorance  of  the  law,  men  are 
liable  to  commit.''^  This  proviso  is  the  antecedent 
WARNING  which  Talmudic  jurisprudence  requires  not 
alone  in  cases  involving  life  and  death,**'  but  even  in 
minor  cases,  where  only  corporal  punishment  is  the 
consequence." — The  warning  has  to  be  administered 
immediately  before  the  commission  of  the  misdeed." 
If  any  time  elapses  between  the  warning  and  the  exe- 
cution of  the  crime,  the  culprit  cannot  be  sentenced  to 
death,  if  the  crime  is  capital;  he  cannot  be  whipped, 
if  the  offense  is  subject  to  corporal  punishment. — 
Moreover,  the  warning  must  expressly  state  the  pen- 
alty to  which  the  would-be  offender  might  be  liable, 
whether  corporal  or  capital;  and  if  capital,  the  par- 
ticular mode  of  death  must  be  mentioned.*^  Further- 
more, the  would-be  offender  must  acknowledge  the 
warning,  or  it  is  of  no  force.  He  must  signify  his 
readiness,  as  the  case  may  be,  to  die  for  the  execution 
of  his  intention,  or  to  suffer  corporal  punishment;  he 

^8  Among  the  Komans,  the  degrees  of  guilt,  and  the  modes 
of  punishment,  were  too  often  determined  by  the  discretion  of 
the  rulers;  and  the  subject  was  left  in  ignorance  of  the  legal 
danger  which  he  might  incur  by  every  action  of  his  life  (Gibbon 
XLIY) ;  and  in  other  countries  it  was  the  same  (cf.  infra  n.  355). 

50  Sanh.  Sb  ,  et  al. 

5'  Maccoth  IC^ ;  Maimon.  H.  Sanh.  XIV,  4. 

*2  Sanh.  42'^;  Maimon.  ib.  XII,  2. 

^  Sanh.  8*^;  Maimon.  ib. 


PROVISOS.  33 

must  say  to  his  monitor:  I  am  fully  cognizant  of  the 
law  and  of  the  inevitable  consequences  of  its  infrac- 
tion, or  something  similar/*  else  the  court  cannot 
consider  the  condition  complied  witli. — In  making 
tliis  proviso,  the  Talmud  assumes  an  unique  position. 
This  requirement  has  no  equal  in  ancient  or  modern 
law.  By  the  laws  of  the  modern  civilized  world,  only 
ignorance  or  mistake  of  fact  excuses  the  crime,  but 
not  error  in  point  of  law;^*^  while  Talmudic  jurispru- 
dence allows  conviction  only  when  the  criminal  is  not 
ignorant  of  even  the  slightest  point  of  law  and,  know- 
ing the  law,  and  being  forewarned  of  the  necessary 
consequences  of  his  intended  violation,  still,  sins  with 
a  high  hand,^  thus  clearly  manifesting  his  presumptu- 
ousness  or  malice  prepense,  without  proving  which 
there  can  be  no  legal  conviction." 

^  Sauh.  40'' ;  Maimon.  ibid. 

*5  If  a  man,  intending  to  kill  a  thief  or  a  housebreaker  in  his 
own  house,  by  mistake  kills  one  of  his  own  family,  this  is  no 
criminal  action;  but  if  a  man  thinks  he  has  a  right  to  kill  a 
person' excommunicated  or  outlawed,  wherever  he  meets  him, 
and  does  so;  this  is  willful  murder.  For  a  mistake  in  point  of 
law,  which  every  person  of  discretion  not  only  may  know,  but 
is  bound  and  presumed  to  know,  is  in  criminal  cases  no  sort  of 
defense.  Ignorantia  juris,  quod  quisque  tenetur  scire,  neniineni  ex- 
cusat,  is  as  well  a  maxim  of  our  own  law,  as  it  was  of  the 
Eoman  (Blackstone  IV,  27).  By  Rabbinic  law  presumption  of 
acquaintance  with  the  law  could  not  convict,  wherefore  even 
the  scholar  rendered  himself  liable  to  punishment  only  after 
being  duly  warned  (Sanh.  S^,  etal.) 

'«  Sanh.  8b;  Maimon.  H.  Is.  Biah.  I,  3;  H.  Sanh.  XII,  2. 

"  In  this  respect,  the  Rabbis  agree  with  the  Romans  that  an  act 
is  not  guilty,  unless  the  intention  is  guilty  {Actus  nonfacit  reum, 
nisi  mens  sit  rea.) — Common  law  is  more  severe  in  this  partic- 
3 


34  CRIMES    AND    PUNISHMENTS. 

§  17.  This  proviso  operates  also  in  another  direction: 
it  serves  the  judiciary  as  a  guide  in  passing  judgment 
on  aggravated  transgressions.  The  court  is  not  un- 
frequently  embarrassed,  when  called  upon  to  decide 
cases  of  uninterrupted  and  repeated  violations  of  any 
one  law,  whether  the  culprit  is  guilty  of  one  continued 
offense  {delictum  continuatum) ,  or  of  several  offenses 
of  the  same  kind  {delictum  reiteratum) .  Of  course,  in 
capital  crimes,  the  problem  meets  with  a  very  easy  so- 
lution: the  criminal  can  not  be  killed  more  than  once, 
even  for  different  crimes, — only  when  he  has  been 
duly  convicted  of  two  or  more  offenses,  all  subject  to 
capital  punishment,  but  to  different  modes  of  death, 
the  Talmud  ordains  that  he  shall  suffer  the  hardest 
death,®*  or  the  one  mentioned  in  the  warning.®'  But 
in  cases  subject  to  corporal  punishment  only,  the  ques- 
tion is  very  important,  and  the  answer  depends  on  the 
number  of  warnings.^" 

ular.  Thus  while  it  requires,  that  "the  killing  should  be  com- 
mitted with  malice  aforethought,  to  make  it  the  crime  of  mur- 
der," it  declares  it  sufficient  if  the  malice  was  implied  only 
(Blackstone  IV,  199  sq.     Cf.  infra  §  43). 

*s  Sanh.  81«;  Maimon.  H.  Sanh.  XIV,  4.    Cf.  infra  n.  378. 

=9  Cf.  Sanh.  8P;  Maimon.  H.  Sanh.  XIV,  4. 

»'  Thus :  The  Kazarite,  who  drinks  a  certain  measure  of  wine 
in  violation  of  his  voav  of  abstinence,  is,  by  Talmudic  law,  sub- 
ject to  flagellation  (ISTazir  34^,  Maimon.  II.  Nezirath  V,  2). 
The  question  now  arises  whether,  if  he  imbibes  this  quantity 
several  times  in  succession,  he  is  to  be  punished  for  so  mt.ny 
separate  and  distinct  transgressions,  or  only  once  for  all.  The 
warning  decides  it.  If  before  each  drink  he  is  duly  warned  not 
to  indulge,  he  is  legally  liable  to  the  prescribed  punishment  for 
each  drink  separately ;  but  when  no  warning  is  administered 


PROVISOS.  35 

§  18.  Also  another  and  more  important  decision  de- 
pends on  the  due  administration  of  the  warning,  name- 
ly that  concerning  transgressions  rendering  the  per- 
petrator liable  at  once  to  corporal  and  to  capital  pun- 
ishment. In  such  cases,  when  the  warning  mentioned 
the  corporal  penalty,  only  this  penalty  is  awarded; 
but  when  it  mentioned  the  death  penalty,  the  culprit 
is  put  to  death,  without  being  flagellated."  The  latter, 
however,  is  the  case  also  when  the  warning  mentions 
both  punishments;  for  Rabbinic  law  does  not  impose 
corporal  and  capital  punishments,  to  which  one  makes 
himself  liable  by  the  commission  of  one  and  the  same 
crime  ;®^  it  inflicts  the  greater  only.*^ 

between  drinks,  he  is  punished  once  only  (Maccoth  21%  Xazir 
42"). 

«'  Hullin  81b;  Maimon.  H.  Sanh.  XVI,  5.— Thu^,  for  the  vio- 
lation of  the  Biblical  precept  regarding  the  slaughtering  of  an 
animal  and  its  oftspring  within  one  day  (Lev.  XXII,  28),  the 
legal  punishment  is  flagellation  (Hullin  78";  Maimon.  H.  She- 
hitta  XII,  1).  Now,  when  one  violates  this  prohibition,  and 
adds  thereto  the  deadly  sin  of  sacrificing  the  victims  to  a  pagan 
deity,  he  is  liable  to  sufter  also  the  death  of  the  idolater  (see  § 
26) ;  but  as  only  one  punishment  can  legally  be  awarded,  the 
warning  decides  which  it  shall  be. 

'2  Sanh.  74%  et  al. — Xor  does  the  Talmud  impose  pecuniary 
fine  and  corporal  ixxnishment  for  one  and  the  same  ofi"ense 
(Tosefta  ib.  IV;  Maccoth  IS^).  However,  in  an  action  for  slan- 
dering a  newly  married  Avoman,  the  convict  is  both  fined  and 
flagellated  (Tosefta  ib.  I,  §  5;  Kethub.  45^;  Maimon.  H.  Xaara 
lit,  1).  But  slander  is  exceptional  in  another  direction  also. 
For,  while  no  violation  of  a  negative  precept,  unaccompanied  by 
physical  action,  is  punishable  corporally  (supra  §  12).  the  slan- 
derer is  flagellated  :  he  is  considered  to  have  traduced  not  only 
the  woman  against  whom  his  tongue  is  directly  levelled,  but  all 


36  CRIMES    AND    PUNISHMENTS. 

§  19.  From  the  benefit  of  the  proviso  under  consid- 
eration, the  Talmud  expressly  excludes  the  crimes  of 
hearing  false  witness^  and  inciting  to  idolatry,^ — the 
first,  because  the  nature  of  the  crime  admits  of  no  fore- 
warning, no  person  knowing  beforehand  that  the  wit- 
ness will  testify  to  a  falsehood;  and  the  second,  on 
account  of  the  heinousness  of  the  crime  in  a  theocratic 
government.^®  Also  the  burglar  is  excluded  from  its 
operation;®^  and  so  are  all  the  perpetrators  of  those 
misdeeds,  for  the  commission  of  which  the  Bible  pre- 
dicts the  penalty  of  excision.®^ 

the  maidens  in  Israel  (Sifre  II,  §  238  ;  Yer.  Terumoth  VII,  §  1, 
p.  44). 

•^  Kethuboth  33b  sq.;  Maimon.  H,  Geneba  III,  1.— The  legal 
maxim  being:  '-The  less  punishment  is  discharged  in  the 
greater"  (Hullin  SI*";  et  al.).  Among  the  Romans,  too,  it  was 
a  rule  of  law  that  a  fine  should  not  be  imposed  with  another 
punishment  in  the  same  rogatio,  decree  or  bill  (Smith  522^). 

6*  Maccoth  4";  Maimou.  H.  Eduth  XVI 11,  4.    Cf.  infra  §31. 

*^  Sanh.  67^;  Maimon.  H,  Ab.  Zara  V,  3;  ib.  H.  Sauh.  XI,  5. 
Cf.  supra  n.  37. 

66  Cf.  infra  n.  89. 

67  Kethuboth  34^;  Sanh.  72^,  "  The  act  of  breaking  in  is  in  it- 
self sufficient  warning." 

6«  Maccoth  13'';  Kerith.  2^1. sq.  Cf.  infra  n.  71.— On  close  exami- 
nation into  the  spirit  of  Talmudic  jurisprudence,  one  cannot 
help  perceiving  that  the  Rabbis  aimed  at  the  ultimate  abolition 
of  capital  punishment.  Some  expressed  themselves  plainly  to 
this  effect  (supra  §  6) ;  and  nothing  could  accomplish  that  end 
better  than  the  proviso  of  the  antecedent  Avarning.  To  abolish 
capital  punishment  suddenly  and  altogether,  they  did  not  deem 
practicable,  as  the  princely  contemporary  of  the  abolitionists 
referred  to  remarked  with  reference  to  them:  ''They  would 
increase  bloodshed  in  the  world  "  (Maccoth  7«),  for  they  would 
remove  the  greatest  deterrent  from    crime;   they,   therefore, 


MISDEMEANORS,    CRIMES    AND    PENALTIES.  37 


3^  Misdemeanors,  Crimes  and  Penalties. 

§  20.   The  philosophic  maxim,  that  it  is  absurd  and 
impolitic  to  apply  the  same  punishment  to  crimes  of 

instituted  a  condition  that  would  render  a  judicial  execution 
highly  improbable,  and  yet  not  altogether  impossible.  Still  it 
must  not  be  assumed  that,  barring  the  exceptions  enumerated, 
all  legal  convictions  were  conditioned  by  strict  compliance  with 
this  proviso.  It  is  true  that,  from  the  oft-repeated  dicta  of  the 
Talmud  (cf.  Tosefta  Sanh.  XI,  §  1;  Sanh.  801)),  such  would  appear 
to  be  the  case;  but  this  would  be  subversive  of  all  principles  of 
law  and  order.  Was  the  murderer  acquitted,  because  he  had  not 
been  duly  forewarned  ?  The  Talmud,  in  strict  accord  with  the 
laws  of  our  own  days,  not  only  justifies  the  killing  of  the  would- 
be  murderer,  but  makes  it  everybody's  duty  to  do  so,  if  possi- 
ble (cf.  infra  §  34),  in  order  to  prevent  him  from  carrying  out 
his  criminal  purpose ;  and  if  there  are  people  near  enough  to 
administer  a  warning,  would  they  not  rather  interfere  and  pre- 
vent the  crime,  than  merely  forewarn  the  criminal  and  stand 
by  while  the  crime  is  being  committed?  The  probability, 
therefore,  is  that  only  such  crimes  and  trespasses  are  conditioned 
by  the  warning,  as  are  liable  to  be  committed  in  ignorance  of 
their  criminal  nature ;  e.  g.  a  profanation  of  the  Sabbath,  or 
eating  on  Atonement  Day,  whose  holy  character  had  possibly 
been  forgotten :  the  Sabbath  might  be  mistaken  for  a  week  day, 
and  the  day  of  Atonement  for  an  ordinary  day.  In  such  cases 
one  must  be  duly  warned  of  the  sanctity  of  the  day  and  of  the 
consequences  of  presumptuously  violating  it  (supra  n.  55) ;  and 
if,  in  spite  of  the  warning,  the  trespasser  persists,  he  becomes 
the  sub  ject  of  punishment  (cf.  Finneles,  Darcah  shel  Torah,  §115). 
Such,  we  conceive,  is  the  rationale  of  the  requirement;  but 
since  all  Rabbinic  jurisprudence,  Talmudic  and  contempora- 
neous as  well  as  that  of  later  date,  yields  the  benefit  of  the  warn- 
ing to  all  cases,  except  those  explicitly  mentioned,  we  are  bound 
to  follow  it  in  these  pages,  and  we  suggest  the  foUowins'  as  the 
principle  underlying  the  curious  proviso.— Society  is  founded 


38  CRIMES    AND    PUNISILMENTS. 

different  malignity,  which  the  great  commentator'' 

on  a  compact  guaranteeing  mutual  protection  :  "that  the  whole 
should  protect  all  its  parts,  and  that  every  part  should  pay  obe- 
dience to  the  will  of  the  whole ;  or,  in  other  words,  that  the 
community  should  guard  the  rights  of  each  individual  member, 
and  that,  in  return  for  this  protection,  each  individual  should 
submit  to  the  laws  of  the  community  "  (Blackstone  I,  48.  Cmp. 
Grotius,  Right  of  War  and  Peace,  B.  Ill  c.  XXIII ;  Beccaria, 
§  21).  This  compact  is  generall}-  understood  or  implied,  though 
seldom  written.  Israel's  compact  is  the  Pentateuch,  "the  Book 
of  the  Covenant."  Now,  as  long  as  one  acts  up  to  society's 
compact  or  constitution,  so  long  is  he  a  member  of  society, 
and  entitled  to  all  the  rights  and  privileges  it  confers  upon  its 
adherents;  but  when  he  flagrantly  and  presumptuously  violates 
the  requirements  of  the  fundamental  principles  of  the  constitu- 
tion, he  ceases  to  be  a  member  of  society:  the  compact  be- 
tween him  and  the  fraternity  is  broken  by  his  own  volition,  and 
he  has  no  more  claim  to  the  protection  which  its  expressed,  or 
implied,  provisions  formerly  conferred  on  him.  Still  this  would 
not  authorize  society  to  do  him  harm.  But  when  the  warning 
is  dul}'  administered  and  he  acknowledges  it,  he  delivers  him- 
self up  to  punishment  (Sanh.  40'^;  supra  §  IG),  virtually  otfering 
to  sutler  corporal  or  capital  punishment  in  exchange  for  the 
gratification  of  his  passion.  Or,  when,  by  his  determination  to 
break  the  compact,  and  thus  to  throw  up  his  membership  and 
become  a  stranger  to  society,  he  is  duly  warned  by  members 
of  society  that,  in  case  he  should  defy  the  provisions  of  their 
compact,  they  would  look  upon  him  as  upon  a  dangerous  for- 
eign invader,  whose  just  reward  is  provided  for;  and  when,  in 
spite  of  the  warning,  he  defies  the  law  and  offends  the  provisions 
of  the  compact,  the  government  considers  him  a  traitor,  and 
justly  treats  him  as  such.  When,  however,  the  condition  is  not 
strictly  complied  with,  the  Rabbis  do  not  consider  themselves 
justified  in  inflicting  bodily  pain,  and  much  less  death,  but  pro- 
vide other  punishments  (cf.  infra,  §  24). 

^9  Blackstone  lY,  17.     Cf.  Luzzatto  ad  Exodus  XXI,  37.— 
Montaiizne  savs :  "  Vices  are  all  alike  as  they  are  vices,  and  'tis 


MISDEMEANORS,    CRIMES    AND    PENALTIES.  39 

SO  ably  and  justly  advocated  only  one  century  ago,  was 
early  recognized  and  acted  upon  in  Talmudic  juris- 
prudence. Not  only  is  there  in  the  Rabbinic  law  a 
well  drawn  scale  of  crimes  and  punishments — the  latter 
ranging  between  flagellation  and  death, — but  in  the 
mode  of  capital  punishment  itself,  as  will  appear  here- 
after,^" there  is  a  gradation  commensurate  with  the 
magnitude  of  the  crime.  At  this  juncture  we  will 
take  a  general  view  of  the  various  misdemeanors  and 
crimes,  and  of  their  consequent  penalties,  beginning 
with  the  lightest. 

§  21.  Flagellation  is  the  penalty  of  three  classes  of 
offenses  :  1.  The  violation  of  any  one  of  the  prohibi- 
tive ordinances  punishable,  according  to  the  Mosaic 
law,   with  excision,''^  to  which,   however,   no   capital 


thus,  perhaps,  the  Stoics  understood  it;  but  though  they  are 
equally  vices,  yet  they  are  not  equal  vices ;  and  that  he  who 
has  transgressed  the  bounds  by  a  hundred  paces,  whence  we 
cannot  deviate  without  going  wrong,  should  not  be  in  a  worse 
condition  than  he  who  has  transgressed  them  but  ten,  is  not  to 
be  believed;  or  that  sacrilege  is  not  worse  than  stealing  a  cab- 
bage" (Essays,  B.  II,  c.  IIj.  And  since  it  is  naturally  essen- 
tial that  a  great  crime  should  be  prevented  rather  than  a  lesser 
one,  and  that  which  is  more  pernicious  to  society,  rather  than 
that  which  is  less  so :  it  is  also  essential  that  there  should  be  a 
certain  correspondence  in  the  punishments,  the  means  employed 
to  prevent  the  occurrence  of  crime  (cf.  Montesquieu,  B.  VI, 
c.  XVI;  Beccaria,  §6). 

™  Cf.  infra  §§  122-139. 

"  What  one  is  to  understand  by  this  term  does  not  clearly 
appear.  In  the  Mosaic  law  we  frequently'  meet  with  the  expres- 
sion: "*  *  *  and  that  being  shall  be  cut  oft"  from  the  midst 
of  its  people,"  without  being  accompanied  by  any  directions 
as  to  how  this  is  to  come  about.     Some  modern  exegetists  assert 


40  CRIMES   AND   PUNISHMENTS. 

punisliment  at  the  instance  of  a  human  tribunal  is 
attached. ^^  2.  The  violation  of  a  negative  precept, 
deadly  in  the  sight  of  heaven."  3.  The  violation  of 
any  negative  precept,  when  accomplished  by  means 
of  a  positive  act.^^ 

that  the  law-giver  thereby  implied  capital  punishment  (cf.  Gese- 
nius.  Thesaurus,  p.  718);  but  one  is  loath  to  admit  that  Moses 
awarded  the  death  penalty  for  transgressions  attecting  ceremo- 
nial rites  only  {e.  g.  Ex.  XII,  15;  XXX,  38.  Lev.  VII,  20. 
Num.  IX,  13.  Where  the  death  penalty  was  intended,  he  une- 
quivocally expressed  it;  as  with  reference  to  the  Sabbath — 
Ex.  XXXI,  14).  Jewish  commentators  generally  understood  by 
it  something  not  depending  on  human  instrumentality.  Basing 
their  opinion  on  tradition,  they  assert  that  excision  is  only  a 
heavenly  visitation  of  early  death  (cf.  Iben  Ezra  ad  Gen.  XVII, 
14;  Abravanel  ad  Num.  XV;  Luzzatto  ad  Gen.  XVII,  14); 
and  this  opinion  seems  to  have  scriptural  authority  for  its 
foundation  (cf.  Lev.  XX,  5-6;  Ezek.  XIV,  8).  If  so,  then 
there  is  no  difference  between  this  penalty  and  that  of  the  next 
class  (cf.  Munk,  Palestine  438). 

'•^Maccoth  13b;  Maimon.  H.  Sanh.  XVIII,  1. 

•3Sanh.  83^;  Maimon.  ib.  XIX,  2. 

">*  Maimon.  ib.  XIX,  2  and  sources.  Cf.  infra  n.  323.— The  enu. 
meration  of  the  different  ofienses  comprised  under  this  section 
would  be  too  tedious,  and  useless  to  both  the  reader  and  the  com- 
piler. Suffice  it  therefore  to  state,  that  Maimouides  who  has, 
in  1.  c,  carefully  arranged  and  numbered  them,  furnishes  a  grand 
total  of  two  hundred  and  seven.  The  first  class  includes  twenty- 
one  offenses,  seven  of  which  are  of  the  nature  of  sexr.^1  corres- 
pondence, not  coming  under  the  head  of  capital  crimes  (cf.  §  26 
sq.),  and  the  rest  are  mostly  violations  of  Levitical  laws.  The 
second  class  comprises  abuses  of  Levitical  functions  and  privi. 
leges  to  the  number  of  eighteen.  The  third  and  last  class,  com- 
prising the  remaining  one  hundred  and  forty-eight,  are  ofienses 
of  various  kinds :  such  as  against  the  temple,  against  agrarian 
laws,  against  the  dietary  laws.     The  greater  part  of  each  class 


MISDEMEANORS,    CRIMES    AND    PENALTIES.  41 

§  22.  Penal  servitude  is  the  punishment  of  the  per- 
son duly  convicted  of  theft,  and  unable  to  make  the 
prescribed  restitution.'^* 

§  23.  Exile'^  is  the  penalty  of  accidental  homicide. ^^ 


was  applicable  to  the  period  during  which  the  sacrificial  rites 
obtained  in  Israel. — Less  formal  than  flagellation  (cf.  infra  §138 
sq.),  but  akin  to  it,  is  the  punishment  known  as  ichipping  for 
insuhordination  {Mackath  Marduth).  This  was  administered  to  all 
refractory  persons  as  well  as  to  the  immodest  (Kiddushin  12*^ ; 
Maimon.  H.  Sanh.  XVIII,  5). 

«  Exodus  XXII,  3;  Mekhilta  Nezikin  §  1 ;  ib.  §  13;  Kidd,  18b. 
This  is  the  Only  case  where  the  Mosaic-Talmudic  law  imposes 
servitude  on  a  Hebrew,  and  it  is  a  kind  of  retaliation  on  the 
culprit  who  attempted  to  enrich  himself  and  to  establish  his 
independence  by  means  of  the  property  of  others  (cf.  Maimon. 
H.  Geneba  I,  4;  More  Neb.  Ill,  41;  Beccaria  §22).— Herod 
ordered  all  thieves  to  be  exposed  and  sold  io  foreigners ;  but 
this  was  against  the  express  law  of  Moses  (Josephus,  Antiqu. 
XVI,  I,  1;  infra  n.  412).  Among  the  early  Romans  a  convic- 
tion of  theft  aftected  the  civil  status  of  the  thief.  When  the 
stolen  thing  was  found  in  his  possession  {furtum  manifestum).  a 
freeman  duly  convicted  was  flogged  and  consigned  to  the  injured 
part3%  This  punishment  was  subsequently  changed  to  a  quad- 
ruple fine,  both  in  the  case  of  a  slave  and  a  freeman.  The  pen- 
alty for  theft  when  the  stolen  thing  was  not  found  in  the  thiefs 
possession,  was  a  twofold  fine  (Smith  463^).  Among  the 
Athenians,  Draco  made  theft  capital,  but  Solon  changed  the 
penalty  to  a  pecuniary  mulct.  The  ancient  Saxon  law  nomi- 
nally punished  theft  with  death,  if  the  stolen  thing  was  valued 
above  twelve-pence,  which  theft  was  denominated  grand  larceny ; 
but  the  criminal  was  permitted  to  redeem  his  life  by  a  pecuniary 
ransom.  In  the  reign  of  Henry  I,  the  power  of  redemption 
was  taken  away,  and  all  persons  guilty  of  grand  larceny  were 
directed  to  be  hanged  (Blackstone  IV,  237  sq.). 

"*  Although  this  is  the  correct  rendition  of  the  term  Golah, 
under  which  the  penalty  is  known,  in  Talmudic  jurisprudence 


42  CRIMES    AND    PUNISHMENTS. 

This    punishment,    however,   is    not   imposed  on  the 
unfortunate  culprit,    unless  the  victim  of  the  acci- 

we  are  to  understand  thereby  emupaiion^  jUg^iU  sanctuary,  asy- 
lum (Miklat). — The  punishment  of  exile  or  banishment  (deporiatio, 
exilium,  aquae  et  ignis  interdidio),  so  universal  among  ancient 
nations,  was  never  practised  among  the  Jews.  Indeed,  in  Pal- 
estine emigration  was  deprecated,  if  not  strictly  forbidden,  the 
Rabbis  seeing  in  it  a  tendency  to  irreligion,  if  not  a  direct  step 
towards  idolatry  (cf.  Keth.  111^;  Guittin  fr';  B.  Bathra  9L; 
Ab.  Zara  8").  Nor  must  our  term  be  understood  in  the  sense 
of  sanctuary  in  the  old  English  law,  which  was  accompanied 
by  confession  of  guilt  and  abjuration  of  the  realm  forever 
(Blackstone  lY,  322).  A  confession  of  guilt  was  never  required 
before  a  Hebrew  trial  court,  and  when  voluntarily  made,  was 
not  considered  in  judgment  (cf,  infra  §  93),  except  in  cases  in- 
volving pecuniary  mulct,  when  it  led  to  the  remittance  of  the 
legal  fine  (B,  Kama  1#,  et  al.).  Besides,  pleading  guilty  to  an 
overt  act  would,  by  the  Talmudic  law,  not  entitle  the  culprit  to 
sanctuary,  this  privilege  being  accorded  to  the  unintentional 
slayer  only  (Exodus  XXI,  12-13;  Maccoth  7^  ;  Maimon.  H. 
Rozeah  V,  1),  and  not,  as  among  other  nations,  to  all  sorts  of 
dangerous  criminals  (cf.  Smith  117%  135").  The  Jewish  Golah 
was  a  "city  of  refuge"  from  the  "avenger  of  the  blood"  (cf. 
Num.  XXXV,  9,  35;  Deut.  XIX,  1-10;  Macc9th  9"),  and  not 
from  the  power  and  authority  of  the  court.  Every  homicide 
had  a  right  to  flee  to  this  sanctuary,  and  to  demand  protection 
there,  until  he  was  taken  out  by  the  proper  authorities  for  pre- 
liminary trial.  If  the  charge  of  intentional  murder  was  proved 
against  .him,  he  was  proceeded  with  according  to  law ;  but  if 
found  innocent  of  guilty  intentions,  he  was  restored  to  the  city 
of  refuge,  and  there  left  under  the  protection  of  the  priests  and 
Levites'^(Sifre  T,  §  160,  etal.;  Tosefta  Maccoth  III.  Cf.  infra  §  134). 
■"  Maccoth  7'^;  Maimon.  H.  Rozeah  Y.  Cf.  infra  §35.— Among 
the  early  Greeks,  too,  the  privilege  of  asylum  was  accorded  to 
the  author  of  accidental,  unintentional  homicide  (Fiske  III, 
§37). 


MISDEMEANORS,    CRIMES    AND   PENALTIES.  43 

dent  dies  immediately  after  the  infliction  of  the  in- 
jury/** 

§  24.  Imprisonment'^  is  the  punishment  of  five  dif- 
ferent classes  of  oiFenders:  1,  Of  homicides  whose 
crime  cannot  be  legally  punished  with  death,  because 
some  condition  or  other,  necessary  to  produce  a  legal 
conviction,  has  not  been  complied  with.®"  2,  Of  insti- 
gators to,  or  procurers  of  murder,  such,  for  instance, 
as  have  the  deed  committed  by  the  hands  of  a  hire- 
ling.^' 3,  Of  accessories  to  loss  of  life;  as,  for  in- 
stance, when  several  persons  club  one  to  death,  and 
the  court  cannot  determine  the  one  who  gave  the 
death  blow.®^     4,  Of  persons  who,  having  twice  been 


78  Guittin  70^;  Mainion.  H.  Rozeah  V,  2. 

"  Among  the  Greeks,  imprif^onment  was  seldom  applied  as  a 
legal  punishment.  They  preferred  banishment  to  the  expense 
of  keeping  prisoners  in  confinement.  Plato,  however,  pro- 
posed to  erect  some  prisons,  one  of  which  Avas  to  be  a  peniten- 
tiary, and  another,  a  penal  settlement  awaj'  from  the  city 
(Smith  213^).  Among  the  Jews  punishment  by  imprisonment 
was  not  practised  under  the  Mosaic  dispensation,  and  the  cases 
mentioned  in  the  Pentateuch  (Lev.  XXI Y,  12;  Num.  XV,  24), 
refer  to  the  simple  detention  of  the  transgressor  until  sentence 
could  be  passed  on  him.  During  the  reign  of  the  later  Ivings 
of  Isarel's  first  commonwealth,  imprisonment  does  appear  as  a 
mode  of  punishment  (cf.  I  Kings  XXII,  27;  II  Chron.  XVI,  10; 
Jerem.  XXXVII) ;  but  even  then  it  was  not  as  the  result  of  a 
legal  decision,  but  as  an  order  of  arbitrary  despotism.  The 
Talmud,  however,  instituted  this  penalty  and  legalized  its 
application  among  the  Hebrews. 

*Sanh.  81";  Maimon.  H.  Rozeah  IV,  8. 

^'  Kidd.  43a ;  Maimon.  ib.  II,  2. 

«B.  Kama  lOb;  Sanh.  78*;  Maimon.  ib.  IV.  6.— Ah  such  as 
were  imprisoned  for  the  ofienses  named  thus  far,  remained  in 


44  CRIMES    AND    PUNISHMENTG. 

duly  condemned  to,  and  punished  with,  flagellation  for 
as  many  transgressions  of  one  and  the  same  negative 
precept,  commit  it  a  third  time.^  5,  Of  the  incor- 
rigible offender  who,  on  each  of  three  occasions,  had 
failed  to  acknowledge  as  many  warnings  antecedent 
to  the  commission  of  one  and  the  same  crime,  the 
original  penalty  for  which  was  excision.  This  pun- 
ishment is  superseded  by  flagellation,  only  if  it  appear 
in  evidence  that  the  warning  had  been  heard  by  the 
culprit.^ 

4.   Capital  Crimes. 

§  25.  Talmudic  jurisprudence  provides  four  modes 
of  capital  punishment.  These  are:  1.  Stoning;  2. 
Burning;  3.  Decapitation;  4.  Strangling.^  The 
first  of  These  is,  in  the  opinion  of   the  Eabbis,  the  se- 

confinement  for  the  balrince  ol  their  natural  lives,  shortened  in 
some  cases,  by  keeping  the  prisoner  on  a  barley  diet.  (Sanh. 
8P;  Maimon.  IT.  Sanh.  XI Y,  4).— The  substitution  of  barley 
for  wheat,  as  an  article  of  food,  was  practised  among  the  llomans 
as  a  common  punishment,  especially  for  military  insubordina- 
tion (Plutarch,  Life  of  Marcellus). 

^3  Sanh.  8P;  Maimon.  II.  Sanh.  XVIII,  5.— According  to 
others,  he  must  have  received  the  punishment  of  flagellation 
three  times,  and  have  been  convicted  of  the  same  crime  a  fourth 
time. 

^  Ibid.  Cf.  supra  §  21.— Of  course,  the  Talmud  authorizes 
temporary  imprisonment  or  detention  during  the  interval  be- 
tween the  indictment  and  the  close  of  the  trial  (Mekhilta  Xez. 
§6;  Sanh.  78^). 

^Sanh.  49>';  Maimon.  H.  Sanh.  XIV,  1.— Maimonides  (ib. 
XV,  10—13)  groups  all  capital  crimes  together  under  the  head- 
ings of  their  respective  penalties,  and  we  follow  his  arrangement. 


CAPITAL   CRIMES.  45 

verest,   the    last,  the   mildest  ;^^  and  the  number  of 
crimes  to  which  they  are  applicable,  is  thirty-six. 

§  26.  All  crimes  for  the  commission  of  each  of  which 
the  oifender,  after  due  trial  and  conviction,  was  to  be 
sentenced  to  death  by  stoning,  are  eighteen  in  number: 
1.  Criminal  conversation  with  one's  own  mother;  2. 
with  his  step-mother;  3.  with  his  daughter-in-law; 
4.   with   a    betrothed   virgin    (rape);   5.  pederasty;*^ 


^  Sanh.  49»- ;  Maimon.  H.  Sanh.  XIV,  4.— The  modes  of  in- 
flicting capital  punishment  in  Athens  were  as  follows  :  1.  By 
the  sworcZ;  beheading;  2.  by  the  rope:  strangling  or  hanging; 
3.  hy  poison:  usually  hemlock ;  4,  by  the  pi  ecipice:  casting  from 
a  rock  or  height;  5.  by  the  katapontismos:  drowning;  6.  by 
crucifixion:  a  mode  used  by  the  Greeks  less  frequently  than  by 
the  Komans  ;  7  by  the  cudgel:  beating,  during  which  the  male- 
factor was  hung  to  a  pole;  8.  by  throwing  into  i\\Qpit  (bara- 
tliron)  which  was  a  noisome  hole  with  sharp  spikes  at  top  and 
bottom;  9.  by  stoning;  10.  by  burning  (Fiske  III,  §  115). — 
Among  the  Eomans  death  was  inflicted  as  follows :  slaves  were 
usually  crucified ;  others  it  was  customary  first  to  hang,  after- 
wards to  behead  or  strangle  in  prison,  or  to  throw  from  theTar- 
peian  rock,  or  to  cast  into  the  sea  or  the  river.  Sometimes  the 
criminals  were  obliged  to  fight  with  wild  beasts  in  the  amphi- 
theatre, or  with  each  other  as  gladiators  ;  or  they  were  thrown 
to  wild  beasts  to  be  devoured.  Another  form,  still  more  hor- 
rible, perhaps,  was  to  wrap  the  oft'ender  in  a  garment  covered 
with  pitch  and  set  it  on  fire  (lb.  §  264). 

"  That  this  unnatural  crime,  as  well  as  bestiality,  was  preva- 
lent at  an  early  age,  appears  from  the  fact  that  Moses  incor- 
porated its  penalty  in  his  laAv  (Ex.  XXII,  18 ;  Lev.  XX,  13); 
but  it  reached  its  maximum  in  later  years  among  the  Greeks 
and  Eomans.  "However  pure  might  originally  have  been  the 
relations  and  habits  of  intercourse  between  the  boys  in  Sparta 
and  Crete,  and  whatever  excellent  qualities  might  have  belonged 
to  the  Theban  sacred  band,  it  is  nevertheless  true  that  the  most 


46  CRIMES    AND    PUNISHMENTS. 

6.  bestiality,  practised  by  a  man;  7.  the  same  prac- 
ticed by  a  woman;  8.  blasphemy;  9.  idolatry;^  10. 
sacrificing  one's  own  children  to  Moloch;  11.  instigat- 
ing individuals  to  embrace  idolatry;  12.   instigating 


hateful  debaucher}'  and  most  odious  forms  of  licentiousuess 
commonly  designated  bj^  this  terra,  were  extensively  practised  " 
(cf.  Fiske  III,  §  182;  Smith 503").  By  the  Scatiuian  law,  "the 
rape,  perhaps  the  seduction  of  an  ingenuous  youth  was  com- 
pensated as  a  personal  injury,  by  the  poor  damages  often  thou- 
sand sesterces,  or  fourscore  pounds,  among  the  Etruscans  and 
Greeks  ";  but  among  the  later  Komans  the  penalty  of  that  crime 
was  most  severe.  "A  painful  death  was  inflicted  by  the  ampu- 
tation of  the  sinful  instrument,  or  the  insertion  of  sharp  reeds 
into  the  pores  and  tubes  of  the  most  exquisite  sensibility ;  and 
Justinian  defended  the  propriety  of  the  execution,  since  the 
criminals  would  have  lost  their  hands,  had  they  been  convicted 
of  sacrilege.  In  this  state  of  disgrace  and  agony,  two  bishops, 
Isaiah  of  Khodes  and  Alexander  of  Diospolis,  were  dragged 
through  the  streets  of  Constantinople,  while  their  brethren  were 
admonished  by  the  voice  of  a  crier,  to  observe  this  awful  lesson 
and  not  to  pollute  the  sanctity  of  their  character"  (Gibbon, 
XIjI  V).  In  England  both  these  crimes  were  punished  either  by 
burning  or  burying  the  offenders  alive  (Blackstone  lY,  216). — 
Among  the  Israelites,  however,  these  crimes  were  never  preva- 
lent, as  the  Talmud  itself  testifies  (Yerush.  Kidd.  lY,  §11,  p.  66= ; 
Babli  ib.  82^).  That  a  crime  is  more  or  less  frequently  discussed 
in  the  Talmud  is  no  proof  of  its  frequent  occurrence  in  Israel 
(cf  §  32),  for  it  must  be  borne  in  mind  that  the  Eabbis  consid- 
ered all  literary  pursuits  as  very  meritorious  in  themselves  : 
"Study  and  be  rewarded,"  was  their  maxim  (Sanh.  5P;  ib.  71% 
et  al.),  aud  on  that  principle  they  elaborated  their  system  of 
laws,  touching  even  unusual  crimes  (cf.  supra  n.  33). 

■**  The  punishment  of  the  idolater  and  of  the  blasphemer  is 
rendered  more  ignominious  by  the  addition  of  post-mortem 
hanging  (cf.  infra  §  129). 


CAPITAL   CRIMES.  47 

communities  to  do  the  like;^°^  13.   pythonism;   14.   ne- 

■9  By  the  Attic  law,  an  action  could  be  brought  against  per- 
sons who  were  considered  to  have  misled  the  people,  by  mis- 
representations or  false  promises,  into  acts  of  injustice,  or  into 
measures  injurious  to  the  state;  and  those  found  guilty  were 
punished  with  death  (Smith  21^).— The  prohibition  of  idolatry 
among  the  Jews  was  founded  upon  the  principle  that  God,  hav- 
ing delivered  them  from  slavery  and  constituted  them  an  inde- 
pendent people,  was,  by  their  own  free  choice,  made  the  civil 
head  of  their  politico-religious  commonwealth.  He  was,  there- 
fore, to  be  honored  as  their  King,  as  well  as  their  God.  Hence, 
even  assuming  the  truth  of  polytheism,  supposing  that  there 
actually  were  other  gods,  this  principle  bound  every  subject  of 
the  government  to  worship  none  but  the  God  of  Israel.  Hence, 
idolatry  among  the  Jews  was  an  oflense  against  the  state ;  and 
while,  by  their  penal  system,  punishments  were  inflicted  for 
criminal  actions  only  (supra  §  12),  words  spoken  against  their 
divine  King  were  considered,  as  designing  the  overthrow  of  the 
government,  and  were  accordingly  made  punishable.  Hence, 
too,  blasphemy  and  inciting  to  apostasy  were  considered  similar  • 
to  other  overt  acts  of  treason,  and  punished  as  such  (cf.  Maimon. 
H.  Accum.  II,  4  sq.;  More  Xeb,  III,  29). — Keeping  this  in  mind, 
and  remembering  that  the  only  end  or  intent  of  human  laws  is, 
to  regulate  the  behavior  of  men  as  they  are  members  of  society, 
and  stand  in  various  relations  to  each  other,  and  that  they  con- 
sequently have  no  concern  with  any  other  but  social  or  relative 
duties  (cf.  Blackstone  I,  124), — the  reader  will  readily  perceive 
the  essential  difference  between  the  right  of  the  ancient  Jews  to 
punish  the  crimes  in  question,  and  that  of  other  civil  govern- 
ments. The  former  sought  to  prevent  acts  prejudicial  to  the 
safety  and  tranquillity  of  their  social  system ;  the  latter  pre- 
tended to  avenge  the  oftended  majesty  of  God !  The  conse- 
quences were  equally  different.  Among  the  former,  only  the 
truly  guilty  ones  had  reason  to  fear  the  severity  of  the  laws ; 
among  the  latter,  the  most  unexceptionable  conduct,  the  purest 
morals  and  the  constant  practice  of  every  duty  in  life,  were  not 
sufficient  security  against  the  persecutions  of  fanaticism.    The 


48  CRIMES   AND   PUNISHMENTS. 

cromancy;  15.  magic ;^  16.  violating  the  Sabbath; 
17.  cursing  a  parent;^'  18.  violation  of  filial  duty, 
making  the  "prodigal  son." 

former  proceeded  against  the  accused  on  the  direct  and  corrobo- 
rative testimony  of  at  least  two  eye-witnesses  (supra  n,  43  ;  infra 
§  82) ;  among  the  latter,  the  slightest  suspicion  endangered  the 
life  or  liberty  of  the  subject  (infra  n.  286).  Among  the  former, 
no  human  being  was  exempt  from  due  obedience  to  the  general 
laws  (infra  §  45)  ;  among  the  latter,  "the  servants  of  the  Lord" 
were  their  own  masters,  and  subject  to  their  own  laws  only 
(infra  n.  166).  Hence  it  came  about  that,  while  the  Rabbis  could 
contidently  prophesy  that  no  community  would  ever  be  pun- 
ished for  apostasy  (cf.  infra  §  28,  n.  106),  Roman  pontifis  excom- 
municated kings  and  peoples,  and  disposed  of  crowns  and  king- 
doms (Hallam  VII;  Blackstone  lY,  46).  Yerily,  where  hu- 
man laws  undertake  to  avenge  the  cause  of  the  infinite  Being, 
they  are  directed  by  his  infinity,  and  not  by  the  ignorance  and 
caprice  of  man  (cf.  Montesquieu  XII,  4),  and  hence  there  is  no 
limit  to  the  means  they  employ  to  detect  crime,  and  no  measure 
to  tlie  punishments  they  inflict  on  the  alleged  criminal. 

»^  Witchcraft,  conjuration,  enchantment,  sorcery  as  well  as 
heresy,  were  formerly  penal  oflenses  in  England,  punishable  by 
burning  to  death,  and  Blackstone  did  not  consider  the  abolition 
of  the  death  penalty  for  these  oflenses  an  improvement  (cf. 
Com.  IV,  60,  and  ib.  436).  The  civil  law  punished  with  death 
not  only  the  sorcerers  themselves,  but  also  those  who  consulted 
them  (ib.  60). 

9'  This  deadly  sin,  as  well  as  blasphemy,  was  not  visited  with 
capital  punishment,  unless  the  culprit  employed  in  connection 
therewith  the  ineffable  name  of  God  (Sanh.  55%  66*;  Maimon.  H. 
Ab.  Zara  II,  7;  H.  Mamrim  V,  2).  By  the  laws  of  Athens, 
those  guilty  of  ill-treating  their  parents  generally  lost  their 
civil  rights  {atimia),  though  they  were  allowed  to  retain  their 
property ;  but  when  the  ill-treatment  consisted  m  beating  their 
parents,  the  culprits  lost  their  hands  (Smith  185=').  Among  the 
Romans,  he  who  killed  a  father  or  mother,  grandfather  or  grand- 


CAPITAL    CRIMES.  49 

§  27.  Those  punished  by  burning  are  ten  in  number: 
1,  Criminal  commerce  of  a  priest 's. daughter  ;^^  2,  crim- 
inal commerce  with  one's  own  daughter ;  3,  with 
one's  own  daughter's  daughter;  4,  with  one's  own 
son's  daughter;  5,  with  one's  own  step-daughter;  6, 
with  one's  own  step-daughter's  daughter;  7,  with 
one's  own  step-son's  daughter;  8,  with  one's  own 
mother-in-law;  9,  with  her  mother;  10,  with  one's 
father-in-law's  mother. — These   nine  cases  of  incest®^ 


mother  was  punished  {more  majorum)  by  being  whipped  till  he 
bled,  sewn  up  in  a  sack,  with  a  dog,  a  cock,  a  viper  and  an  ape, 
and  thrown  into  the  sea,  if  the  sea  was  near  by,  and  if  not,  by  a 
constitution  of  Hadrian,  he  was  exposed  to  wild  beasts,  or,  in  time 
of  Paulus,  he  was  burnt.  Other  parricides  were  simply  put  to 
death  (Smith  308).  In  China,  it  is  said,  there  is  a  decree  "that 
a  child  or  grandchild,  who  is  guilty  of  addressing  abusive  lan- 
guage to  his  or  her  father  or  mother,  paternal  grandfather  or 
grandmother,  shall  suffer  death  by  being  strangled"  (Chambers, 
Inform,  for  the  People  I,  81). 

^^  By  the  Roman  law,  to  have  knowledge  of  a  Yestal  virgin 
was  considered  incestum,  and  both  parties  were  alike  punished 
Avith  death  (Smith  SSSb). 

93  Gibbon  (1.  c.)  thus  briefly  sums  up  the  different  customs  in 
that  regard:  "An  instinct,  almost  innate  and  universal,  appears 
to  prohibit  the  incestuous  commerce  of  parents  and  children  in 
the  infinite  series  of  ascending  and  descending  generations. 
Concerning  the  oblique  and  collateral  branches,  nature  is  indif- 
ferent, reason  mute,  and  custom  various  and  arbitrar3\  In 
Egypt,  the  marriage  of  brothers  and  sisters  was  admitted  with- 
out scruple  or  exception :  a  Spartan  might  espouse  the  daugh- 
ter of  his  father,  an  Athenian  that  of  his  mother;  and  the 
nuptials  of  an  uncle  with  his  niece  were  applauded  at  Athens 
as  a  happy  union  of  the  dearest  relations.  The  profane  law- 
givers of  Rome  were  never  tempted  by  interest  or  superstition 
to  multiply  the  forbidden  degrees;  but  they  inflexibl}^  con- 
4 


50  CRIMES    AND    PUNISHMENTS. 

are  punishable  by  burning,  only  when  committed  dur- 
ing the  life  of  the  criminal's  wife;  otherwise  they  arc 
considered  as  cases  of  adultery,  and  punished  as  such.^* 
§  28.  With  decapitation  only  two  crimes  are  punished; 
viz:  murder^^  and  communal  apostasy  from  Judaism  to 
idolatry."^ 

demned  the  marriages  of  sisters  and  brothers,  hesitated  whether 
first  cousins  should  be  touched  by  the  same  interdict;  revered 
the  paternal  characters  of  aunts  and  uncles,  and  treated  affinity 
and  adoption  as  a  just  imitation  of  the  ties  of  blood." 

»*  Sanh.  76";  Maimon.  H.  Is.  Biah  II,  8.     Cf.  §  29. 

9^  In  the  first  instance  the  duty  of  bringing  a  murderer  to 
justice  rests  on  the  ''avenger  of  the  blood" — the  nearest  rela- 
tive or  heir  of  the  victim  of  the  crime;  where  there  is  no  aven- 
ger, or  he  fails  to  perform  his  duty,  the  proper  authorities  must 
see  it  done  (Sanh.  45'';  Maccoth  12'';  Maimon.  H.  Rozeah  I, 

2,  5), By   the  laws  of  Solon,   too,   the  task  of  prosecution 

devolved  upon  the  nearest  relatives  of  the  deceased,  and  in  the 
case  of  a  slave,  upon  the  master.  To  neglect  to  prosecute,  with- 
out good  cause,  was  deemed  an  oftense  against  religion ;  that  is, 
in  any  relative  not  farther  removed  than  a  first  cousin's  son. 
Within  that  degree  the  laAv  enjoined  the  relatives  to  prose- 
cute, under  ths  penalty  of  impeachment  for  impiety  (asabeias 
graphe)  if  they  failed  to  do  so.  They  might,  however  (with- 
out incurring  any  censure),  forbear  to  prosecute,  where  the 
murdered  man  had  forgiven  the  murderer  before  he  died ;  or  in 
cases  of  involuntary  homicide,  where  the  offender  gave  the  sat- 
isfaction which  the  law  required;  unless  the  deceased  had  given 
a  special  injunction  to  avenge  him  (Smith  769").  Among  the 
Arabians,  as  among  the  barbarians  of  every  age,  a  fine  or  com- 
pensation for  murder  often  releases  the  perpetrator  from  further 
prosecution;  but  the  kinsmen  of  the  dead  are  at  liberty  to 
accept  the  atonement,  or  to  execute  with  their  own  hands  the 
law  of  retaliation.  The  refined  malice  of  the  Arabs  generally 
refuses  even  the  head  of  the  murderer,  substitutes  an  innocent 
for  the  guilty  person,  and  transfers  the  penalty  to  the  best  and 


CAPITAL   CRIMES.  51 

§  29.  Finally,  six  crimes  are  punished  by  strangu- 
lation: 1,  Adultery;^  2,  bruising  a  parent;^®  3,  kid- 
most  considerable  of  the  race  b}*^  whom  they  have  been  injured 
(Gibbon  c.  L).  Among  the  Franks  murder  was  not  a  capital, 
but  a  finable  offense,  ''since  the  loss  of  one  citizen  cannot  be 
repaired  by  that  of  another  (cf.  infra  n,  281). "  With  them  mur- 
der was  expiated  by  the  pa3'ment  of  Weregild  (head-money),  which 
was  paid  partly  to  the  state  as  a  remuneration  for  the  loss  of  a 
subject,  partly  to  the  bereft  family,  and  partly  to  the  church 
for  the  benefit  of  the  departed  soul.  This  head-money  was  fixed 
by  the  Salique  law  at  600  solidi  for  an  Antrustion  of  the  King ; 
at  300  for  a  Roman  noble;  at  200  for  a  common  Frank ;  at  100 
for  a  Roman  possessor  of  lands ;  and  at  45  for  a  tributary  or 
cultivator  of  another's  property  (cf.  Hallam,  1.  c,  c.  II,  part 
I). — Talmudic  jurisprudence  expressly  forbids  taking  blood- 
money  from  the  murderer,  or  even  from  the  homicide  ^per  xinfor- 
iunium,  in  strict  accordance  with  the  Mosaic  prohibition  (Xum. 
XXXV,  31  sq.),  and  that  even  when  the  avenger  is  willing  to  com- 
promise by  the  acceptance  of  a  ransom  (Sifre  I,  §  160 ;  Kethu- 
both  37"^).  Xor  was  blood-money  permitted  in  Athens.  The 
unintentional  slayer  of  a  person  could,  indeed,  abridge  his 
year's  banishment  (cf.  infra  n.  123),  and  even  after  having 
joined  issue  before  the  Areopagus,  the  person  accused  of  mur- 
der could  escape  capital  punishment  by  voluntary  exile,  and 
none  could  prevent  him  ;  yet  the  party  thus  evading  the  extreme 
punishment,  was  never  allowed  to  return  home;  and  even  when 
a  decree  was  passed  to  legalize  the  return  of  exiles,  the  murderer 
who  thus  fled  the  country, was  always  excepted  (Smith  89''). 

9^  Cf.  supra  n.  89 ;  infra  §  32. 

97  By  a  constitution  of  Constiintine,  this  offense  in  the  adul- 
terer was  capital,  but  the  adulteress,  after  being  whipped,  was 
put  into  a  convent.  If  her  husband  did  not  take  her  out  in  two 
years,  she  was  forced  to  assume  the  habit  of,  and  spend  the  rest 
of  her  life  in  the  convent  (Smith  23'').  Among  the  Chaldeans, 
it  seems,  mutilation  was  the  penalty,  the  nose  and  the  ears  of 
the  offenders  being  cut  off  (cf.  Ezek.  XXIII,  25).     In  England 


52  CRIMES    AND    PUNISHMENTS. 

napping;'^  4,  maladministration  (the  '^ Rebellious 
Elder");  5,  false  prophecy;  6,  prophesying  in  the 
name  of  heathen  deities.^™ 

the  temporal  courts  took  no  cognizance  of  the  crime  of  adul- 
tery, otherwise  than  as  a  private  injury  (Blackstone  IV,  65). — 
That  strangulation,  and  not  stoning,  was  the  penalty  of  the 
adulterer  among  the  ancient  Hebrews  is  certain  (cf.  Sanh.  52b 
sq.,  84b,  89";  Sifra  Kedoshim  §  IX;  Maimon.  H.  Sanh.  XV,  13; 
.  et  al.),  notwithstanding  that  we  find  it  stated  (John  VIII,  4-5) 
that  "Moses,  in  the  law,  commanded  us  that  such  should  be 
stoned.''''  If  the  whole  account  there  given  (3-11)  is  at  all  true 
(and  many  there  are  who  suspect  its  authenticity,  because  it  does 
not  appear  in  most  Mss. — v.  Kenan,  Vie  de  Jesus  p.  245,  n.  2), 
then  we  may  assume  that  an  illegal  penalty  was  purposely  men- 
tioned, "in  order  to  try  him,  that  they  might  have  whereof  to 
accuse  him"  (ib.  ),  as  clearly  appears  from  the  purport  of  the 
narrative. 

^■'  As  a  safeguard,  the  Talmudists  object  even  to  a  child's  per- 
forming venesection  or  any  other  operation  on  its  parent,  un- 
less there  is  none  else  to  do  it  (Sanh.  84";  Maimon.  H.  Mam- 
rim  V,  7). 

^  The  oflender  is  not  put  to  death  for  this  oftense,  unless  he 
carries  his  victim  home,  enslaves  him  and  sells  him  (Sanh.  85"; 
Maimon.  II.  Geneba  IX,  2). — In  Rome  the  penalty  of  this  crime 
varied  at  different  times.  A  lex  Fabia  made  it  pecuniary ;  but 
this  fell  into  disuse,  and  persons  convicted  of  j)l<^gium  were 
generally  condemned  to  the  mines  (Smith  781^).  Blackstone 
(IV,  219)  tells  us  that  in  the  civil  law  it  was  punished  with 
death,  and  the  common  law  of  England  punished  it  with  fine, 
imprisonment  and  the  pillory. 

I"  It  is  an  old  established  rule  in  Rabbinic  jurisprudence  that 
capital  punishment  may  be  inflicted  only  where  the  Mosaic  law 
imposes  it  (Sifre  II,  §  154.  Cmp.  Yer.  Sanh.  XI,  §  6,  p.  30<=  top ; 
Babli  ib.  87''),  and  from  the  above  exhaustive  list  of  capital 
crimes  it  clearly  appears  that,  with  all  the  muliplicity  of  Rab- 
binic enactments  (supra  §  11),  and  notwithstanding  the  extreme 


CAPITAL   GRIMES.  53 

§  30.  All  capital  crimes  here  enumerated,  if  classi- 
fied according  to  their  respective  natures,  will  appear 
as  follows  :  a.  Adultery  2  ;  b.  bestiality  2  ;  c.  blas- 
phemy 1;  d.  idolatry  7;  e.  incest  12;/.  kidnapping  1; 
g.  maladministration  1;  h.  murder  1;  i.  pederasty  1; 
k.  rape  1;  I.  violations  of  filial  duty  3;  m.  violation 
of  the  Sabbath  1;  n.  witchcraft  3.— Of  these  thirteen 
classes,  four  (c,  d,  m  and  n),  including  twelve  offenses, 
comprise  such  crimes  as  more  immediately  offend  God, 
for  they  are,  in  the  main,  transgressions  against  the 
letter  and  the  spirit  of  revealed  religion.  The  remain- 
ing nine  categories,  containing  twenty-four  crimes, 
are  more  immediately  repugnant  to  that  universal 
law  of  society,  which  regulates  intercourse  between 
man  and  man,  and  which  is  established  for  the  con- 
servation of  the  safety  and  peace  of  individuals  and 
communities.^"^ 

severity  attributed  to  the  Pharisees,  the  Kabbis  did  not  add  a 
single  crime  to  the  Mosaic  catalogue  of  capital  punishments, 
while  in  the  course  of  these  pages  it  will  be  as  clearly  demon- 
strated that,  by  their  despised  and  often  vilified  laws,  they  ren- 
dered the  execution  of  a  death-sentence  all  but  impossible. 

'0'  This  is  certainly  a  formidable  array  ;  but  if  the  reader  has 
followed  us  attentively,  he  will  have  noticed  that  the  crimes 
punished  with  death  by  these  laws,  are  either  of  deep  moral 
malignity,  or  are  such  as  aimed  against  the  very  being  of  the. 
Jewish  nationality.  He  will,  moreover,  have  discovered  that, 
in  reality,  there  are  but  four  classes  of  capital  offenses  known 
to  Talmudic  jurisprudence— 'treason,  murder,  deliberate  and 
gross  abuse  of  parents,  and  the  more  unnatural  and  horrid 
crimes  arising  out  of  the  sexual  relations;  but  no  injury  simply 
affecting  property  could  draw  down  upon  the  citizen  an  igno- 
minious death.  The  Talmudists  respected  moral  purity  more 
than  gold.  Moral  tui-pitude,  and  the  most  atrocious  forms  of 
moral  turpitude,— these  were  the  objects  of  their  severity.' 


54  CRIMES    AND    PUNISHMENTS. 

§  31.  Our  list  of  atrocious  crimes  would  be  incom- 
plete, should  we  fail  to  speak  of  one  which,  though 
already  mentioned  in  these  pages, ^"^  could  not  on  ac- 
count of  its  peculiar  nature,  be  classed  with  those  of 
any  particular  category, — the  crime  of  bearing  false 
witness.  Scripture  ordains:  "  If  the  witness  be  a  false 
witness,  and  has  testified  falsely  against  his  brother, 
then  shall  ye  do  unto  him,  as  he  had  thought  to  do 
unto  his  brother  *  *  *  and  thine  eyes  shall  not 
pity  him:  life  shall  go  for  life,  eye  for  eye,  &c. "^"^ 
Accordingly  the  Talmud  teaches  that  he,  by  whose 
testimony  an  innocent  man  has  been  condemned  to 
death,  shall  himself  suffer  the  death  to  which  the  vic- 
tim of  his  falsehood  has  been  sentenced;  if  the  false 
testimony  brought  about  a  sentence  of  flagellation,  its 
author  shall  receive  it;  and  if  one  of  pecuniary  fine, 
he  shall  pay  it.^"* — However,  the  penalty  is  not  im- 

"«  Supra  §  19. 

"3  Deut.  XIX,  16-21. 

'o^Maccoth  5^";  Maim  on.  H.  Eduth  XVIII,  1.— In  Athens, 
only  the  witness  to  a  summons  was  liable  to  be  criminally 
prosecuted,  in  case  he  had  been  found  guilty  of  falsum;  while 
the  witness  in  a  cause  was  liable  to  a  civil  action  only  (Smith 
820^).  By  the  Gothic  law,  if  one  was  executed  in  consequence 
of  ftilse  testimony,  the  judge  and  the  prosecutor  as  well  as  the 
witnesses  were  severely  punished ;  and  among  the  Romans,  the 
Lex  Carnelia  (Be  Sicariis)  punished  the  false  witness  as  being  guilty 
of  a  species  of  assassination.  In  England  it  was  once  attempted 
to  introduce  the  law  of  retaliation  as  a  punishment  for  such  as 
preferred  malicious  accusations  against  others;  that  is.  they 
were  to  incur  the  same  pain  that  the  other  would  have  had,  in 
case  the  accusations  had  been  found  true.  But  after  one  year's 
experience,  the  punishment  of  taliatiou  was  rejected,  and  im- 
prisonment adopted  in  its  stead  (Blackstoue  IT.  14).     Hence, 


CAPITAL   CRIMES.  55 


posed  on  the  false  witness,  unless  his  testimony  is 
confuted  by  other  testimony  touching  himsefl,  as  when 
other  parties  testify  that,  at  the  very  time  at  which 
he  alleges  that  he  witnessed  the  perpetration  of  the 
crime,  he  was  Avith  them  at  another  place.  But  when 
his  testimony  is  disproved  by  other  means,  as  by  an 
alibi  of  the  accused  or  of  the  corjpus  delicti,  at  the  time 
the  crime  is  said  to  have  been  committed,  his  testi- 
mony is  rejected;  but  no  punishment  is  decreed  against 
him,  except  some  stripes,  in  addition  to  the  infamy 
resting  on  him.^"'* 

§  32.   As  a  matter  of  history  it  deserves  to  be  stated, 
that  the  apostasy  of  a  Jewish  community,  in  the  sense 


the  modern  law  (to  avoid  the  danger  of  deterring  witnesses  from 
giving  evidence  upon  capital  prosecutions,  if  it  must  be  at  the 
peril  of  their  own  live?)  does  not  punish  false  testimony  as  se- 
verely, though  jurists  admit  that  '-the  guilt  of  him  who  takes 
away  the  life  of  an  innocent  man  by  a  false  oath,  is  more  atro- 
cious than  that  of  an  assassin  Avho  murders  by  a  dagger  or  by 
poison,"  since  he  adds  to  the  privation  of  life  public  ignominy, 
the  most  excruciating  of  tortures  to  an  honorable  mind,  and  re- 
duces an  innocent  family  to  ruin  and  infamy  (lb.  196 ;   Chitty 
ad  1.  c.).— The  Talmudists  did  not  entertain  such  fears.     The 
assumption  that  "  few  honest  witnesses  would  venture  to  give 
evidence  against  a  prisoner  tried  for  his  life,  if  thereby   they 
made  themselves  liable  to  be  prosecuted  as  murderers,"  did  not 
enter  the  minds  of  the  Rabbis ;  and  if  it  did,  it  was  soon  dissi- 
pated bv  their  noble  faith  in  the  moral  sense  of  the  honest  man 
who  would  not  fail  to  comply  with  his  obligation,  based  on  two 
Scriptural  precepts  (cf.  Lev.  V,  1;  ib.  XIX.  16)  as  well  as  on 
his  social  relations  to  the  state :  to  bear  witness  to  the  truth, 
when  he  is  thoroughly  acquainted  with  the  facts  in  the  case 
(Sifra  Kedoshim  §  4;  B.  Kama  56-  Maimon.  H.  Eduth,  1, 1.— 
Cf.  infra  n.  281). 


56  CRIMES    AND    PUNISHMENTS. 

of  Talmudic  jiirispniclence,  or  the  execution  of  a 
"prodigal  son/'  the  Rabbis  assert,  never  occurred 
under  the  Talmudic  dispensation;  and  R.  Jonathan 
reports  his  having  met  with  the  graves  of  persons  con- 
victed of  these  crimes,  as  an  extraordinary  and  wonder- 
ful event. '"^ — Executions  for  witchcraft,  too,  seem  to 
have  been  exceedingly  rare.  Only  one  occurrence  of 
this  kind,  under  the  presidency  of  Simon  ben  Shettah, 
is  recorded  in  the  Talmud  j^"^  and  that  is  considered  by 
the  Nestor  of  Jewish  history'"^  anachronistic,  and  the 

"*  Maccoth  5*.     Cf.  infra  §  95. 

"*  Speaking  of  the  laws  concerning  the  prodigal  son,  a  Kabbi 
remarks  :  "Is  it  probable  or  reasonable  that,  because  a  young 
man  consumes,  outside  of  his  parental  house,  a  certain  quantity 
of  meat  and  Italian  wine,  his  father  and  his  mother  (for  the  law 
requires  the  joint  accusation  by  both  his  parents — Sanh.  71^ ; 
Maimon.  H.  Mamrim  YII,  10)  would  bring  about  his  being 
stoned  to  death?  This  never  did  and  never  will  happen!" 
And  the  student  of  Scripture  cannot  fail  to  perceive  that  by 
prescribing  the  original  law  fDeut.  XXI,  18-21),  Moses  in- 
tended to  restrict  the  parental  authority  over  the  life  and  death 
of  the  child,  generally  exercised  among  ancient  nations ;  and 
the  Kabbis  abridged  it  still  more. — As  regards  the  razing  of  a 
city  the  majority  of  the  inhabitants  of  which  simultaneousl}' 
embrace  idolatry — this,  too,  the  Eabbi  declares  to  bean  unheard 
of  event,  and  confidently  predicts  its  never  occurring  (Sanh.  7P; 
Cf.  supra  n,  88). 

"^  Yerush.  Haggiga  II,  §  2,  p.  77*1  sq.,  where  it  is  related  that 
eighty  women  were  engaged  in  practising  witchcraft ;  that  the 
sage  named,  who  was  at  the  time  chief  of  the  Synhedrion  (cf. 
infra  §  55),  discovered  them  and  had  them  executed  for  this  ne- 
farious offense. 

'"»  Graetz,  Geschichte  d.  Juden  III,  163.— That  the  occurrence 
was  a  rarity  as  well  as  unaccountable  (since  idolatry,  the 
mainspring  of  witchcraft  was  not  rampant  in  Judea  at  that 
time)  is  certainly  true ;  but  it  seems  equally  true  that  something 


CAPITAL    CRIMES.  57 

whole  Talmudic  account  thereof  defective.  Only 
homicide  would  seem  to  have  been  of  more  frequent 
occurrence  than  any  other  atrocious  crime,  if  the 
frequency  with  which  the  Talmudists,  in  illustrat- 
ing judicial  proceedings,  refer  to  it  be  accepted  as 
a   criterion.^"* — Following    this    example,   we    shall 

of  the  kind  did  happen.  It  is  referred  to  in  both  the  Palestinean 
and  Babylonian  Talmud  (1.  c.  and  id.  Sanh.  VI,  §  9,  p.  23c; 
Babli  ib.  45'')  and  in  contemporaneous  Rabbinic  lore  (Sifre  II, 
§  221)  as  to  a  well  authenticated  event,  and  is  not  incompatible 
with  the  characteristic  zeal  of  its  author.  The  Talmud  (Yer. 
Sanh.  ib.  §5,  p.  23''  bot,)  explicitly  states  that  "the  hands  of 
Simon  ben  Shettah  were  hot,"  i.  e.  he  was  exceedingly  severe 
in  judgment,  and  relates  that  he  thereby  drew  upon  himself  the 
bitter  resentment  of  the  families  of  those  who  had  experienced 
the  pain  of  his  iron  rule.  The  consequences  were  terrible  to 
him.  Some  of  his  enemies  conspired  against  him,  to  obtain 
revenge.  They  accused  his  only  son  of  a  capital  crime,  and  so 
skilfully  did  they  plan  their  charge  and  frame  their  evidence, 
that  the  innocent  vouth  was  convicted  and  executed  (cf.  infra 
n.  239).  Eashi  (Sanh.  44'')  and  some  learned  and  discriminating 
writers  of  modern  times  connect  the  two  stories,  and  consider 
the  latter  as  a  complement  to  the  former. 

"^«E.  g.,  the  court  enquires  of  the  witnesses,  whether  they 
knew  the  victim,  and  whether  the  death-blow  was  struck  imme- 
diately after  the  administration  of  the  warning  (Sanh.  40*  i  Mai- 
mon.  H.  Sanh.  XII,  1).  On  opening  the  proceedings,  the  court 
is  to  encourage  the  accused,  addressing  him  in  such  terms  as : 
If  thou  hast  not  TciUed  the  person,  thou  hast  nothing  to  fear 
(Sanh.  32'').  Illustrating  how  witnesses  might  be  convicted  of 
falsum  (cf.  supra  §  31),  the  Talmud  instances  the  supposititious 
question  by  the  confuting  witnesses  (infra  §  95,  n.  317) :  How 
do  ye  testify  thus  in  the  face  of  the  fact  that,  at  the  time  ye 
allege  to  have  witnessed  the?  commission  of  the  murder,  ye  were 
with  us  at  another  place  (Maccoth  5").  So  also  the  prince's 
objection  to  the  abolition  of  capital  punishment :   "These,  too. 


58  CRIMES    AND    PUNISHMENTS. 

pause  here  to  review  briefly  what,  in  their  opinion, 
constituted  this  crime,  and  how  its  different  grades 
were  treated. 

5.  Homicide. 

§  33.  Like  modern  law,  the  Talmud  recognizes 
three  species  of  homicide:  justifiable,  excusable,  and 
felonious;  hut  it  knows  also  of  a  fourth  species  which 
might  he  termed  culpable,  and  which  is  a  light  degree 
of  the  felonious.  We  shall  consider  them  separately, 
and  in  the  order  of  their  criminality. 

§  34.  Homicide  is  justifiahle:  1,  in  the  execution  of 
the  condemned  criminals  by  the  legal  executioners."" 

2,  In  defense  of  human  life;  thus  if  one  attempts  the 
life  of  another,  the  crime  should  he  prevented,  if 
necessary,  by  the   killing  of  the  would-be  criminal."' 

3,  In  defense  of  chastity.  If  one  attempts  to  commit 
rape,  or  adultery,  or  incest,  or  pederasty, "^  his  death, 

would  spread  bloodshed  in  Israel"  (Maccoth  7";  supra  n.  68). 
—Still  it  must  not  be  concluded  from  these  and  similar  Talmudic 
references,  that  murder  was  necessarily  of  very  frequent  occur- 
rence among  the  ancient  Jews  (cf.  supra  n.  33,  87).  In  times  of 
peace  history  can  point  to  but  little  bloodshed  in  Israel's  state; 
and  what  is  here  quoted  comes  down  to  us  from  the  troublous 
times  of  the  declining  years  of  Israel's  independence,  when  for- 
eign customs  had  invaded  Palestinean  homes ;  when  Grecian 
and  Eoman  characteristics  superseded  the  peaceful  and  moral 
habits  of  the  Jews  who  then  became  divided  among  themselves 
into  parties  and  factions,  and  internal  strife  doubtlessly  induced 
an  occasional  murder  as  a  natural  consequence. 

"»Cf.  infra  §121. 

"'  Cf.  infra  §  30. 

"2  By  the  Attic  law  it  was  justifiable  in  the  husband  to  slay  an 
adulterer  if  caught  in  ipso  delicto  ;  or  in  the  fother  or  the  brother 


HOMICIDE.  59 

brought  about  in  the  act  of  preventing  the  crime,  is 
justified.  4,  In  self-defense,  and  that  not  only  when 
one  directly  attemi^ts  his  life,  but  also  when  he  dis- 
covers a  burglar  on  his  premises  during  the  night.  "^ — 
In  all  these  cases  of  prevention,  the  killing  is  justifi- 
able if  done,  with  a  view  to  prevention,  before  the 
crime  has  been  accomplished,  and  only  when  prevention 


to  slay  a  paramour  caught  in  the  same  way  with  his  daughter  or 
his  sister.  Even  when  thus  caught  with  a  concubine,  the  para- 
mour could  lawfully  be  killed  by  her  master,  if  the  status  of 
her  children  was  that  of  free  men  (cf.  Smith  770^)  Similar  to 
this  was  the  law  of  Rome.  Modern  law,  while  justifying 
the  woman's  killing  one  who  attempts  to  ravish  her,  and  the 
husband's  or  father's  killing  the  one  who  attempts  rape  on  his 
wife  or  his  daughter,  condemns  the  killing  of  an  adulterer  who 
is  such  by  the  consent  of  the  woman  (Blackstone  IV,  181). — 
The  Talmud  draAvs  no  distinction  between  rape  and  adultery 
in  this  particular,  and  prescribes  it  as  a  duty  devolving  not 
only  upon  immediate  relations,  but  upon  every  law-abiding 
citizen,  to  prevent  by  all  necessar}^  force  the  commission  of  the 
crime  (Sanh.  73^;  Maimon.  H.  Rozeah  I.  6-12). 

"3  The  Bible  says:  "If  the  thief  be  found  breaking  in,  and 
be  smitten  that  he  die,  there  shall  be  no  blood-guiltiness  for 
him "  (Exodus  XXII,  2),  whereupon  the  Talmud  remarks : 
The  burglar  certainlj^  intends  to  murder  thee  if  he  meet  with 
resistance  at  thy  hands,  and  the  rule  is  :  "Kill  the  one  attempt- 
ing unlawfully  to  kill  thee"  (Sanh.  72'i).  But  a  distinction  is 
made  between  the  criminal's  entering  the  premises  by  the  reg- 
ular way  of  ingress — the  door,  for  instance,  or  by  breaking  in, 
I.  e.  entering  by  an  irregular  method.  In  the  former  case  he 
must  not  be  killed,  unless  he  persists  in  trespassing  after  being 
duly  warned  off  the  premises  (Sanh.  72*";  Rashi  ad.  1.  s.  v. 
Zoo ;  Maimon.  H.  Geneba  IX,  8  sq).— There  is,  however,  in 
that  case  no  distinction  betAveen  his  being  killed  by  the  party 
on  whose  premises  he  trespasses,  or  by  any  other  person. 


60  CRIMES    AND    PUNISHMENTS. 

can  be  effected  by  no  other  means,  as,  for  instance, 
by  maiming  the  culprit;  otherwise  it  is  considered 
culpable,"* — The  commission  of  no  other  crime,  how- 
ever heinous  in  the  eyes  of  the  law,  and  however  dan- 
gerous to  the  institutions  of  tlje  country,  may  be 
prevented  by  such  violent  measures;'^*  and  no  other 
species  of  homicide  is  so  free  from  guilt  and  conse- 
quent punishment  as  the  justifiable. 

§  35.  By  excusable  homicide  the  Talmud  understands 
two  species :  the  fortuitous  and  the  accidental. "®  Thus, 
if  a  ladder  breaks  under  an  ascending  man,  who  falls 
upon  and  kills  a  by-stander,  this  is  fortuitous;  but 
when  the  man,  in  descending  the  ladder,  falls  down 
upon  and  kills  a  person,  the   killing  is  accidental."' 

"■*  Sanh.  74a ;  Maimon.  H.  Rozeah  I,  13,  to  which,  however, 
no  death  penalty  at  human  hands  is  attached  (cf.  infra  §  36). 

115  "Theoneuniform^principle  that  runs  through  our  own  and 
all  other  laws  seems  to  be  this  :  that  where  a  crime,  in  itself  capi- 
tal, is  endeavored  to  be  committed  by  force,  it  is  lawfnl  to  repel 
that  force  by  the  death  of  the  party  attempting"  (Blackstone 
IV,  181). — The  Talmud  is  more  tender  where  human  life  is 
concerned.  While  it  authorizes  or  commands  the  prevention  of 
the  above  crimes,  if  necessary,  by  the  death  of  the  person  attempt- 
ing them,  it  discriminates  between  crimes  against  humanity 
(which  are  mala  in  se),  and  those  against  religion  (which  are 
mala  proMbita),  even  where  the  latter  are  of  the  deepest  dje, 
as  idolatry  (cf  supra  n.  89),  though,  indeed,  the  penalty  of 
both,  after  due  trial  and  conviction,  is  death  (cf  Maimon.  H. 
Rozeah  I,  11 ;  Sanh.  73^). 

"«  By  the  first  is  meant  homicide  which  is  the  result  of  the 
highest  degree  of  chance,  without  premeditation  or  negligence ; 
the  second,  though  also  the  result  of  chance,  is  still  not  in  so 
high  a  degree  as  the  former. 

"' Maccoth  7'^;  Maimon.  H.  Rozeah  VI,  12,  14.— In  order 
that  a  case  of  homicide  be  classed  under  the  accidental,  the 


HOMICIDE. 


61 


So  also  when  a  parent  or  a  teacher,  while  engaged  in 
the  discharge  of  his  duty  of  instructing  his  child  or 
his  pupil  in  something  useful,  chastises  him  and  occa- 
sions his  death,  this  is  fortuitous,— provided  he  uses 
not  too  much  force  nor  an  instrument  calculated  to 
produce  death;  otherwise  the  death  of  the  victim  will 
be  accounted  as  accidental. "'  Or  when  an  officer  of  the 
court,  servato  juris  ardine,  in  administering  the  legally 
prescribed  flagellation,  causes  the  death  of  the  con- 
vict, it  is  fortuitous;  but  when,  by  mistake,  he  admin- 
isters more  than  the  prescribed  number  of  stripes,  it 
is  accidental."*      Or  when  an  authorized  and  practical 

Talmud  requires  that  the  death-stroke  be  given  while  the  author 
thereof  is  in  a  downward  motion,  probably  because  there  is  then 
a  better  opportunity  for  observing  the  surroundings,  aud  taking 
precautions  to  avoid  accident.  Or  is  this  discrimination  based 
on  the  scientific  principle,  established  centuries  after  the  close 
of  that  microcosmic  compilation,  the  Talmud,  that- the  velocity 
of  a  body  is  accelerated  as  it  approaches  the  earth,  and  it  there- 
fore requires  more  care  and  circumspection  in  its  downward 
course  to  avoid  danger? 

"'^  Maccoth  8a;  Maimon.  H.  Rozeah  Y,  5  sq.     Cf.  Tosefta  B. 
Kama,  ed.  Zuck.,  IX,  §  11 ;  Sifre  I,  §  160.— In  common  law,  too,    , 
'•where  a_pa£entij^Q^erateiycorcfictingJns  chijd^ra  master 
hiTapprentice  or  scholar,  or  an  officer  punishing  a  criminal, 
and  happens  to  occasion  his  death,  it  is  only  misadventure  :  for 
the  act  of  correction  is  lawful ;  but  if  he  exceeds  the  bounds 
of  moderation,  either  in  the  manneK,  the  instrument,  or  the  ^ 
quantity  of  punishment,  and  death  ensues,  it  is  manslaughter  •■ 
at  least,  and  in  some  cases  (according  to  circumstances)  murder  " 
(Blackstone  IV,  182). 

"9  Maccoth  8%  22b;  Maimon.  H.  Sanh.  XV,  12.  Cf.  Tosefta 
Guittin  IV,  §  6 ;  ib.  B.  Kama  VI,  §  17;  IX,  §  11 ;  ib.  Maccoth 
II,  §5. 


62  CRIMES   AND   PUNISHMENTS. 

physician  administers  medicine,  or  performs  a  surgical 
operation,  which  instead  of  curing,  kills  the  patient, 
his  death  is  fortuitous  ;*^''  but  when  the  patient's  death 
is  the  result  of  the  physician's  mistake,  it  is  acci- 
dental.^"— Fortuitous  homicide  being  devoid  of  every 
semblance  of  design  and  negligence  on  the  part  of 
the  unfortunate  perpetrator,  the  Talmud  attaches 
no  blame  or  penalty  thereto,  and  even  the  vindex 
is  enjoined  not  to  avenge  the  blood. ^^^  Accidental 
homicide,  on  the  other  hand,  though  also  free  from 
mischievous  intention,  implies  negligence,  and  is  there- 
fore not  altogether  exempt  from  punishment,  which  is 
death  at  the  hands  of  the  avenger,  or  exile.  ^"^ 

'*'  Sanh.  84" ;  Mekhilta  Nezikin,  §  4. 

'*'  Toseffca  1.  c. — By  the  Attic  law,  too,  a  physician  who 
caused  the  death  of  a  patient  by  a  mistake  or  by  professional 
ignorance,  was  excused,  but  although  he  was  excused,  he  was 
not  considered  free  from  pollution :  this  had  to  be  expiated  by 
lustrations  (Smith  770'').  B}^  common  law,  the  regular  phj^si- 
cian  cannot  be  held  criminally  responsible  in  such  cases,  but 
the  impostor  may  be  convicted  of  manslaughter  (Blackstone 
IV,  197). 

>22Maccoth  10";  Maimon.  H.  Rozeah  VII,  3. 

"^Maccoth  lib;  et  al. — Among  the  Greeks  those  who  were 
convicted  of  unintentional  homicide,  not  perfectly  excusable, 
were  condemned  to  leave  the  country  for  a  year.  They  were 
obliged  to  depart  within  a  certain  time  and  by  a  certain  route, 
and  to  expiate  their  offense  by  certain  prescribed  rites.  It 
was  their  duty,  also,  to  appease,  either  by  presents  or  humble 
entreaty  and  submission,  the  relatives  of  the  deceased,  or,  if 
he  had  none  within  a  certain  degree,  the  members  of  his  clan. 
If  the  convict  could  prevail  upon  the  latter  to  grant  him  per- 
mission, he  might  return  even  before  the  year  had  expired 
^Smith  770'').     By  Talmudic  law,  based  on  the  Mosaic  code 


HOMICIDE.  63 

§  36.  Homicide  is  culpable:  1.  When  it  is  the  result 
of  gross  negligence,  as,  for  instance,  when  one  is  en- 
gaged in  razing  a  wall  near  a  thoroughfare,  and  un- 
wittingly throws  the  debris  on  a  passenger  and  thereby 
causes  his  death. ^^4  2.  When  one,  in  his  endeavor  to 
prevent  the  commission  of  an  atrocious  crime,  inten- 
tionally kills  the  would-be  criminal,  without  trying 


(Num.  XXXV,  25),  this  was  not  permitted  (cf.  supra  n.   76. 
infra  §  134). 

^  B.  Kama  SS^ ;  Maccoth  8^ ;  Maimon.  H.  Eozeah  VI,  6.— 
Among  the  Romans,  a  person  who  throws  or  pours  anything 
from  a  place  or  upper  chamber  upon  a  road  which  is  frequented 
by  passengers,  or  upon  a  place  where  people  are  in  the  habit  of 
standing ,  is  fined  with  double  the  amount  of  damage  he  causes 
by  his  negligence;  if  he  thereby  injures  a  person,  he  is  obliged 
to  pay  the  expenses  of  a  medical  attendant,  remunerate  the  suf- 
ferer for  his  loss  of  time  and  the  like ;  and  if  the  oflense  results 
in  the  death  of  a  person,  he  must  pay  a  fine  of  fifty  aurei,  or 
about  $200  (Smith  342»).  By  common  law,  "  where  a  person 
does  an  act,  lawful  in  itself,  but  in  an  unlawful  manner,  and 
without  due  caution  and  circumspection  :  as  when  a  workman 
flings  down  a  stone  or  piece  of  timber  into  the  street,  and  kills 
a  man,  this  may  be  either  misadventure,  manslaughter  or  mur- 
der, according  to  the  circumstances  under  which  the  original 
act  was  done ;  if  it  were  in  a  couutry  village,  where  few  passen- 
gers are,  and  he  calls  out  to  all  people  to  have  a  care,  it  is  mis- 
adventure only  ;  but  if  it  were  in  London,  or  other  populous 
town,  where  people  are  continually  passing,  it  is  manslaughter, 
though  he  gives  loud  warning ;  and  murder,  if  he  knows  of  their 
passing,  and  gives  no  warning  at  all,  for  then  it  is  malice  against 
all  mankind"  (Blackstone  IV,  192).  According  to  Talmudic 
jurisprudence,  it  would  be  purely  fortuitous  in  the  first  case ; 
accidental  in  the  second  ;  and  culpable  in  the  third,  unless  the 
workman  had  been  duly  warned,  on  pain  of  death,  not  to 
throw  anything  on  the  streets  where  people  were  at  the  time. 


64  CRIMES    AND    PUNISHMENTS. 

other  means'  of  prevention."*  3.  When  committed 
through  ignorance  of  the  law:  as  when  one  believes 
that  the  law  does  not  forbid  the  killing  of  the  intended 
victim."® — In  all  these  cases,  though  the  judiciary  have 
no  legal  authority  to  punish  the  offender  capitally, 
the  avenger  of  the  blood  may  kill  him  with  impunity, 
no  sanctuary  protecting  him.'^ — 4.  When  the  crimi- 
nal is  not  the  immediate  cause  of  the  death,  as  when 
he  is  an  accessory  before  the  fact:  procuring,  counsel- 
ling or  commanding  another  to  commit  the   crime, '^ 

•»  Sanh.  74*;  Maimon.  H.  Kozeah  I,  13.     Cf.  supra  §  34, 

■26  Maccoth  7^ ;  Mahnon.  1.  c.  VI,  9.  Cf.  supra  §  16. — By  com- 
mon law,  only  ignorance  or  mistake  of  fact  excuses  a  crime,  but 
not  an  error  in  point  of  law;  so  "if  a  man  thinks  he  has  a  right 
to  kill  a  person  excommunicated  or  outlawed,  wherever  he  meets 
him,  and  does  so,  this  is  wilful  murder"  (Blackstone  IV,  27). 
By  Talmudic  law  this  is  culpable  homicide  only,  the  rule  in  such 
cases  being  that,  even  though  the  person  be  duly  condemned  to 
death,  no  one,  except  the  proper  executioners  (cf.  infra  §  121), 
has  a  right  to  kill  him ;  still  no  capital  punishment  can  be  im- 
posed on  the  perpetrator,  since  his  victim  had  already  forfeited 
his  life  and  had  virtually  no  longer  any  being  (Tosefta  B.  Kama 
IX,' §  15 ;  Sifre  I,  §  161 ;  Arakhin  6"). 

''"Maccoth  7^  9*;  Maimon.  1.  c  VI,  5.— We  have  already 
seen  that  only  homicide  per  infortunium  is  subject  to  the  pun- 
ishment of  exile  (supra  §26,  n.  76) ;  hence  this  one  is  excluded  ; 
for  while  the  perpetrator  was  unfortunate  in  being  ignorant,  the 
act  was  willful. 

'*^  Kidd.  43*.— Some  authorities  consider  this  a  plain  case  of 
murder,  and  would  see  it  punished  as  such.  These  base  their 
opinion  on  the  case  of  David  and  Uriah  (II  Sam.  XI),  where 
though  David  did  not  lay  Irmds  on  the  victim  (ib.  17),  the 
prophet  nevertheless  charged  him  with  murder,  saying  :  "Thou 
hast  slain  him  with  the  sword  of  the  children  of  Ammon"  (ib. 
XII,  9).     The  Halakha,  however,  is  as  stated  above;  and,  with 


HOMICIDE.  65 

or  exposing  the  victim  at  a  place  where  wihl  beasts 
may,  and  eventually  do  kill  him.'-^    5.  When  theper- 

reference  to  other  crimes,  even  the  stricter  authorities  admit 
that  where  the  agent  is  the  sole  beneficiary  of  the  crime,  the 
instigator  cannot  be  punished  (Kidd.  I.e.     Cf.  Tosafoth  ib.  s.  v. 
Shello). — By  Attic  law,  when  one  instigated  another  to  counuit 
a  murder,  and  the  deed  was  accomplished,  he  was  deemed  a 
murderer  (Smith  769") ;  but  in  other  Grecian  states,  the  crimi- 
nality of  conspirators  against  human  life,  was  independent  of 
the  result  of  the  conspiracy,  and  the  penalty  upon  conviction, 
was  the  same  as  that  incurred  by  actual  murderers  (ib.  171''). 
Common  law  punishes  the  accessor}'  before  the  fact  as  the  prin- 
cipal (Blackstone  IV,  39) ;  but  the  advisability  of  discriminat- 
ing between  the  person  procuring  the  commission  of  a  crime, 
and  him  who  actually  commits  it,  agreeably  to  Talmudic  juris- 
prudence, is  ably  advanced  by  the  great  commentator  (1.  c). 
He  argues  that,    "if  a  distinction  were  constantly  to  be  made 
between  the  punishment  of  principals  and  accessories,  even  be- 
fore the  fact,  the  latter  to  be  treated  with  a  little  less  severity 
than  the  former,  it  might  prevent  the  perpetration  of  many 
crimes,  by  increasing  the  difficulty  of  finding  a  person  to  exe- 
cute the  deed  itself,  as  his  danger  would  be  greater  than  that  of 
his  accoVnplices,  by  reason  of  the  diff^erence  of  his  punishment." 
—The  Talmud  makes  this  distinction  because,  to  render  the 
criminal  liable  to  capital  punishment,  the  crime  must  be  com- 
mitted by  himself  (cf.  infra  §  43),  by  his  direct  and  immediate 
force  (Sanh.  77";  Maimon.  H.  Rozeah  III,  13),  i.  e.  he  must  be 
what  is  termed  in  common  law,  "a  principal  in  the  first  degree." 
So  if  A  puts  B  near  a  waterfall,  even  where  the  water  is  certain 
to  come  eventually,  and  it  does  come  and  drown  the  victim, 
this  is  culpable  homicide  only,  for  at  the  moment  the  culprit 
placed  his  intended  victim  there,  the  cause  of  death  was  not 
there;  but  if  A  puts  B  right  under  the  cataract,  and  B  is  drowned, 
this  is  murder  (Sanh.  1.  c). 

•»  Sanh.  76b,  gq. .  Maimon.  H.  Rozeah  III,  9.— By  common 
law,   "where  a  man  has  a  beast  that  is  used  to  do  mischief: 
and  he  knowing  it,  suffers  it  to  go  abroad,  and  it  kills  a  man  ; 
5 


66  CRIMES   AND   PUNISHMENTS. 

petrator  is  the  direct  cause  of  the  calamity,  but  the 
victim  has  had  a  chance  of  averting  it:  as  when  one 
willfully  and  maliciously  pushes  a  person  into  fire  or 
water,  whence  the  victim  can  easily  escape  with  his 
life.'^°  6.  When  the  death  is  the  result  of  miscarried 
felonious  intent]  as  when  one  intends  to  kill  a  certain 
person,  or  even  an  animal,  but  the  missile,  taking  a 
difierent  direction,  strikes  and  kills  an  unintended 
party. ^^^  7.  When  the  deed  is  accomplished  by  more 
than  one  party  :  as  when  several  men  together  club  one 
to  death,  or  shoot  at  one,  and  it  cannot  be  clearly  ascer- 
tained which  of  them  was  the  immediate  cause  of  his 
death.  ^^*  8.  When  the  missile  miscarries  and  strikes  a 
part  not  aimed  at  by  the  thrower.  Thus,  A  using  a 
missile  which  is  heavy  and  formidable  enough  to  kill  a 
person  when  it  is  struck  at  his  thorax,  but  presumably 
not  elsewhere,  aims  at  one  of  the  less  vital  spots  upon 


even  this  is  manslaugter  in  the  owner  [by  Jewish  law,  the  beast 
was  killed,  and  its  owner  fined— Ex.  XXI,  28—32 ;  B.  Kama 
42,  et  al.] :  but  if  he  had  purposely  turned  it  loose,  though  barely 
to  frighten  people,  and  make  what  is  called  sport,  it  is  as  much 
murder,  as  if  he  had  incited  a  bear  or  a  dog  to  worry  them" 
(Blackstone  IV,  197). 

•3"Sanh.  76b;  Maimon.  H.  Rozeah  III,  9.— But  where  the 
criminal  prevents  his  escape,  it  is  murder. 

'3'  Maccoth  7^,  9*;  Maimon.  1.  c. — Common  law  transfers  in 
such  cases  the  felonious  intent  from  one  victim  to  the  other,  and 
punishes  the  perpetrator  just  as  if  he  had  carried  out  his  origi- 
nal intention  (Blackstone  IV,  201). 

'3-^  Sifra  Emor  §20;  Sanh.  78\  Cf  infra  §§  43,  86.— By  common 
law,  if  two  or  more  come  together  to  do  an  unlawful  act,  of 
which  the  probable  consequences  might  be  bloodshed,  as  to  beat 
a  man,  to  commit  a  riot,  or  to  rob  a  park :  and  one  of  them 
kills  a  man,  it  is  murder  in  them  all  (Blackstone  IV,  200). 


MURDER.  67 

B's  body,  and  causes  death:  or,  vice  versa,  A  aims  the 
same  missile  at  B's  thorax,  but  it  strikes  a  less  dan- 
gerous spot,  and  contrary  to  ^probabilities,  kills  B.'^ 

§  37.  The  penalty  of  culpable  homicide  depends 
partly  on  the  exigencies  of  the  times.  If  the  court 
finds  that  circumstances  call  for  examples  of  rigor, 
the  culpable  slayer  is  executed  ;^^*  otherwise  he  is 
scourged  and  imprisoned.'^ 

6.  Murder. 

§  38.  Homicide  is  felonious  when  all  conditions  re- 
quired by  the  Talmud  and  enumerated  above  (§  13, 
sq. ) ,  have  been  duly  complied  with,  and  there  is  none 
of  the  justifiable,  excusable,  or  even  of  the  culpable 
circumstances  mitigating  the  crime.  Thus,  if  one  wil- 
fully and  maliciously  kills  a  human  being, ^^  male  or 
female,  old  or  young,  ^^^  Israelite  or  non-Israelite,  free- 


ly Sanh.  78* ;   Maimon.  H.  Rozeah  IV,  2. 

'="  Sanh.  46\  Cf.  supra  §  9.— Coke  somewhere  says :  Trans- 
gressione  muUiplicata,  crescat  puma  inflidio.  When  transgression 
is  multiplied,  let  the  infliction  of  punishment  be  increased. 

'35  M.  Katan  16^  Sanh.  81".     Cf.  supra  §24,  n.  82. 

'36  To  kill  a  child  in  its  mother's  womb,  is  not  murder,  but  a 
finable  offense  (Exodus  XXI,  22;  Mekhilta  Xezikin  §  8;  B. 
Kama  49^  Cf.  infra  n.  355),  as  in  Attica,  where  a  civil,  but  not 
a  criminal  action  could  be  brought  against  a  person  procuring 
an  abortion.  Among  the  Romans,  this  crime  {partus  abactio, 
or  abortus  procuratio)  seems  to  have  originally  been  unnoticed 
by  the  laws ;  under  the  emperors,  however,  a  woman  who  had 
procured  the  abortion  of  her  own  child  was  punished  with 
exile,  and  those  who  gave  the  potion  were  either  condemned  to 
the  mines  or  banished  to  an  island  (Smith  47«). 

'3'  By  this  is  meant  even  a  new  born  infant,  provided  it  was 
born  at  the  end  of  the  full  natural  time.     The  prematurely  born 


68  CRIMES   AND   PUNISHMENTS. 

born  or  slave, '^  it  is  murder,  and  its  perpetrator,  after 
due  trial  and  conviction,  undergoes  the  penalty  of  de- 
capitation.'^' And  in  this  respect  Talmudic  jurispru- 
dence draws  no  distinction  between  a  sound  and  a  dis- 
eased victim  :  it  is  murder,  even  if  the  victim  was 
moribund  at  the  time  the  attack  was  made  on  him"" — 
provided,  however,  his  disease  was  not  the  result  ot 
blows  or  wounds  previously  received  at  the  hands  of 

was  not  considered  in  Talmudic  law  as  a  living  being,  until 
after  the  thirtieth  day  of  its  life  (Xidda  44'',  sq.;  Yer.  Yebamoth 
XI,  §  9,  p.  12*'  top ;  Maimon.  H.  Kozeah  II,  6),  In  this  the 
Talmud  diflers  from  common  law,  according  to  which,  "if  a 
child  be  born  alive  and  dieth  by  reason  of  the  potion  or  bruises 
it  received  in  the  womb,  it  seems  by  the  better  opinion  to  be 
murder  in  such  as  administered  or  gave  them"  (Blackstone  IV, 
198). 

i38Mekhilta  Nezikin  §  7;  Maimon.  H.  Rozeah  II,  10.— In 
the  case  of  the  slaying  of  a  slave  the  Talmud  makes  the  same 
distinction  as  in  the  case  of  the  slaying  of  a  child  or  pupil  (supra 
§  35,  n.  118.— Mekhilta  1.  c;  Sifre  I,  §  100 ;  Maimon  ib.  14).  So 
by  an  edict  of  Constantine,  the  Eoman  master  was  allowed  to 
chastise  his  slave  with  rods  or  imprisonment;  and  if  death  ac- 
cidently  ensued,  he  was  guilty  of  no  crime  ;  but  if  he  struck  him 
with  a  club  or  stone,  and  thereby  occasioned  his  death,  he  was 
guilty  of  murder  (Blackstone  IV,  1^3). 

'=»9  Sanh.  76'' ;  Maimon.  H.  Eozeah  I,  1. 

'*  Neither  does  common  law  make  any  distinction  between 
the  killing  of  a  sound  or  a  diseased  victim.  "•  However  feeble 
the  condition  of  the  deceased  may  have  been,  or  however  short 
his  tenure  of  life,  it  is  equally  murder,  as  if  the  person  killed 
had  been  in  the  prime  of  youth  and  vigor"  (Roscoe574);  and 
Blackstone  (IV,  197)  cites  a  case  of  an  "unnatural  son  who  ex- 
posed his  sick  father  to  the  air,  against  his  will,  by  reason 
whereof  he  died,"  and  the  son  was  found  guilty  of  murder. 


MURDER.  69 

other  parties,  human  or  brute."'  On  the  other  hand, 
if  the  criminal  is  the  diseased  person,  the  legal  con- 
sequences depend  on  the  witnesses  of  the  crime:  if  the 
oft'ense  is  coftimitted  in  the  presence  of  a  competent 
tribunal,'*^  the  offender  may  suffer  the  penalty  of 
death;  but  when  it  is  perpetrated  in  the  presence  of 
private  individuals,  he  escapes  the  ordeal  of  a  trial  for 
his  life,  and  is  guilty  of  culpable  homicide  only.'^ 

"'  In  this  case  the  offender  would  be  guilty  of  culpable  homi- 
cide. But  no  man  is  considered  diseased  in  the  sense  of  this 
proviso,  unless  physicians  declare  him  to  be  incurable,  and  as- 
sert that,  even  if  nothing  will  intervene  to  accelerate  his  death, 
the  disease  will  soon  end  his  life  (Maimou.  11.  Rozeah  II,  8. 
Cmp.  Maccoth  7''). 

'*=  Cf.  infra  §  69. 

'*2  Sanh.  78* ;  Maimon.  H.  Rozeah  II,  9. — The  distinction  here 
made  readily  suggests  the  modern  rules  governing  cases  of 
"contempt  of  court,"  which,  if  committed  in  the  face  of  the 
court,  may  be  instantly  punished  by  imprisonment,  even  with- 
out the  formality  of  an  examination  (cf.  Blackstone  IV,  286). 
An  assault  in  court  was  formerly  very  rigorously  punished. 
"By  ancient  common  law  before  the  conquest,  striking  in  the 
king's  court  of  justice  or  drawing  a  sword  therein,  was  a  capital 
felony :  and  our  modern  law  retains  so  much  of  the  ancient  se- 
verity, as  only  to  exchange  the  loss  of  life  for  the  loss  of  the 
offending  limb.  Therefore  a  stroke  or  a  blow  in  such  a  court 
of  justice,  whether  blood  be  drawn  or  not,  or  even  assaulting  a 
judge  sitting  in  the  court,  by  drawing  a  weapon,  without  any 
blow  struck,  is  punishable  with  the  loss  of  the  right  hand,  im- 
prisonment for  life,  and  forfeiture  of  goods,  and  of  the  profits 
of  his  lands  during  life ''  (ib.  125).  Xow,  as  it  is  highly  improb- 
able that  a  full  court  (twenty-three  competent  judges — (infra 
§  53)  should  be  assembled  to  witness  the  commission  of  a  mur- 
der outside  of  the  court  house,  it  might  be  presumed  that  such 
an  event  could  happen  in  the  court  house  only,  while  the  court 


70  CRIMES    AND    PUNISHMENTS. 

§  39.  Nor  does  it  matter  how  and  by  what  means 
the  crime  is  accomplished.  Whether  the  killing  is 
done  with  the  bare  hand  or  with  an  instrument  of  any 
kind,  by  blows  or  by  suffocation,  by  burning  or  by 
drowning:  it  is  murder;"^  provided  that  the   victim 

is  engaged  in  the  administration  of  justice ;  wherefore  the  offender 
is  severely  dealt  with  for  both  the  shedding  of  the  blood  and 
contempt. — The  true  reason,  however,  for  this  discrimination 
seems  to  be  the  following  : 

Talmudic  jurisprudence  recognizes  such  testimony  only,  as 
when  confuted,  would  subject  the  witness  to  the  same  penalty 
which  the  accused  would  have  suffered,  had  the  testimony  not 
been  confuted  (cf.  supra  §  31,  infra  §  95) ;  wherefore  the  Kabbis 
have  established  the  legal  maxim  :  "  Testimony  to  which  the 
law  of  confutation  cannot  be  fully  applied  deserves  not  the  name 
of  testimony"  (B.  Kama  75^;  Sanh.  41%  et  al.).  Now,  in  our 
case,  if  the  witnesses  to  the  crime  be  laymen,  their  testimony 
would  be  subject  to  be  confuted  by  other  witnesses,  and  should 
they  be  convicted  of  falsnm,  they  could  not  undergo  the  same 
deffree  of  punishment  which  they  irifend  (cf.  Deut.  XIX,  19)  to 
inflict  on  the  alleged  criminal :  they  having  conspired  to  bring 
about  the  premature  death  of  one  who  is  already  doomed  to 
death  by  his  malady,  while  they  themselves  are  in  good  physi- 
cal condition,  likely  to  enjoy  many  years  of  life.  But  where 
the  judges  themselves  are  witnesses  to  the  crime,  there  is  no 
need  for  other  testimony :  they  may  convict  him  on  their  per- 
sonal observation.  For  although  the  general  rule  of  Talmudic 
law  is:  "The  witness  to  a  crime  must  not  turn  judge  of  the 
criminal" — for  having  himself  witnessed  the  commission  of 
the  deed,  he  may  be  too  excited  to  look  for  extenuating  circum- 
stances (cf.  Eosii  Hash,  26^;  B.  Kama  90";  infra  n.  293).— here 
they  need  not  be  particularly  anxious  to  bring  about  an  acquit- 
tal of  the  criminal,  he  being  already  a  dying  man  (cf.  Sanh.  81'' ; 
Tosafoth  ib.  s.  v.   Wenigmar). 

'^^Sifre  I,  §  160;  Sanh.  76".— The  Talmud  requires  that,  in 
order  to  convict  of  the  crime  of  murder,  violence  on  the  part  of 


MURDER.  71 

had  no  chance  of  escape  before  being  physically  dis- 
abled/** and  that  his  death  was  the  natural  and  imme- 
diate consequence  of  the  violence  exercised  on  him  by 
the  criminal.  ^*^ 

§  40.  The  perpetration  of  a  crime  having  been  re- 
ported, it  devolves  upon  the  court  to  hold  a  prelimi- 
nary examination,  an  inquest.  ^*^  If  the  victim  be 
still  alive,  the  court  must  carefully  examine  his  con- 
dition, and  pass  an  opinion  as  to  the  probabilities  of 
his  recovery.  When  they  opine  that  he  is  not  fatally 
injured,  the  prisoner  may  be  liberated  on  payment  of 

the  accused  must  first  be  proved :  an  act  touching  the  body  ot 
the  victim.  But  wliere  there  is  no  sucli  act  of  violence :  as  when 
one  friglitens  another  to  death,  there  is  legally  no  murder  (cf. 
B.  Kama  91*;  Maimon.  H.  Hobel  II,  7). — In  short,  the  crimi- 
nal must  have  put  his  hand  to  the  deed  (Kidd.  43'',  Maimon. 
H.  Gezella  III,  11). — The  same  is  the  rule  of  common  law. 
While  it  considers  it  murder  whether  the  killing  was  done  by 
poisoning,  striking,  starving,  drowning,  or  by  any  other  of  the 
thousand  ways  in  which  human  nature  may  be  overcome  (cf. 
Blackstone  IV,  196),  "it  is  not  murder  to  work  on  the  imagi- 
nation so  that  death  ensues,  or  to  call  feelings  into  so  strong  an 
exercise  as  to  producea  fatal  malady"  (ib.  197,  n.  30). 

'«Cf.  supra  §36,  n.  130. 

'*«  Cf.  E.  Kama  85";  Sanh.  77";  Maimon.  H.  Hobel  II.  20.— 
In  common  law,  "If  a  wound  itself  be  not  mortal,  but  by  im- 
proper applications  become  so,  and  terminates  fatally,  and  it 
can  be  clearly  shown  that  the  medicine  and  not  the  wound  was 
the  cause  of  death,  the  party  who  inflicted  the  wound  will  not 
be  guilty  of  murder"  (Blackstone  IV,  197,  n.  30). 

'"•^  Cf.  Sanh.  37^ — Among  the  Greeks,  three  months  were 
allowed  for  the  preliminary  enquiry  in  a  case  of  murder,  and 
there  were  three  special  hearings,  one  in  each  month,  before  the 
matter  was  ready  to  be  regularly  tried  (Smith  769"). 


72  CRIMES    AXD    PUNISHMENTS. 

legal  damages;"*  but  when  they  regard  the  injuries 
as  necessarily  fatal,  the  criminal  is  detained  under 
iruard  to  await  the  results  of  his  crime.  If  the  vie- 
tim  ultimately  recovers,  the  prisoner  is  required  to 
pay  the  damages;  but  when  death  ensues,  even  if  in 
the  interval  the  patient  improved,  and  '  gave  promise 
of  recovery,  the  prisoner  is  tried  for  his  life."^ 

'*'•  Sanh.  78^;  Tosefta  ib.  IX,  §  1. — These  damages  are  quin- 
tuple. 1,  For  (leterioratiou  in  value:  the  victim  is  appraised  as 
if  he  were  to  be  sold  in  the  slave-market,  and  the  difference  be- 
tween his  values  with  or  without  the  injury  is  awarded  to  him. 
2,  For  his  pains:  an  estimate  is  made  how  much  one  would 
charge  and  voluntarily  undergo  like  pains.  3,  For  medical  at- 
tendance :  an  estimate  is  made  of  the  expenses  the  sufferer  neces- 
sarily must  incur  in  that  direction.  4,  For  the  loss  of  time : 
it  is  estimated  how  much  a  hireling,  in  a  like  crippled  condi- 
tion, could  earn  during  the  probable  period  of  the  victim's  dis- 
ability. 5,  For  the  mortification:  it  is  estimated  how  much 
a  man  would  take  and  subject  himself  to  a  like  insult.  The 
second  and  fifth  assessments  are  made  with  due  reference  to  the 
physical  condition  and  social  standing  of  both  the  criminal  and 
the  victim,  and  all  damages  must  be  paid  at  once  (B.  Kama 
83b,  j,q..  Maimon.  H.  Holjel  I.  2;  II,  9;  II,  14,  15;  III,  1). 
When  once  liberated,  the  culprit  cannot  again  be  tried  for  that 
offense,  even  when  the  victim  subsequently  grows  worse,  and 
dies  from  the  effects  of  his  injuries  (Sanh.  1.  c.)  By  the  Attic 
law,  even  when  the  injuries  did  not  prove  fatal,  if  the  criminal 
was  found  guilty  of  intended  murder,  his  property  was  confis- 
cated and  he  was  exiled  (Smith  135^).  By  common  law.  'if 
one  give  another  a  stroke  which,  though  in  itself  not  mortal, 
but  with  good  care  the  injured  party  might  be  cured,  yet  if 
death  results  from  it  within  the  year  and  a  day,  it  is  homicide 
or  murder,  as  the  case  may  be,  and  so  it  has  always  been  ruled ' 
<Roscoe  573). 

'«  Sanh.  78b;  Maimon.  H.  Rozeah  IV,  5. 


\ 
MURDER.  73 

§  41.  As  even  medical  skill  cannot,  in  many  in- 
stances and  without  due  reference  to  the  peculiar  cir- 
cumstances in  the  case,  decide  as  to  whether  death 
resulted  from  natural  causes,  and  was  only  accelerated 
by  the  violence,  or  solely  from  the  acts  of  the  criminal; 
and  as  persons  of  science,  in  order  to  form  their  own 
opinions,  must  at  least  partly  rely  on  external  circum- 
stances,— it  is  incumbent  upon  the  court  at  the  inquest 
critically  to  observe  and  to  note  all  accompanying 
facts  with  the  greatest  possible  accuracy.  Thus,  if 
the  killing  was  effected  by  the  brute  force  of  the 
criminal,  without  any  instrument,  the  court  examines 
the  physical  build  of  both  the  victim  and  the  crimi- 
nal, and  judges  whether  the  former  was  not  too  power- 
ful a  man  to  be  overcome  and  killed  by  the  latter  ;^^°  if, 
by  striking  with  a  missile,  the  weight  and  bulk  of 
the  missile  must  be  conside^'ed,  and  it  must  be  judged 
whether  that  missile*^^  is  at  all  likely  to  cause  death, 
and  if  so,  whether  it  was  sufficient  to  kill  by  striking  at 
the  spot  it  did.^^^ — If  the  criminal  caused  the  death  of 

^  Sifre  I,  §  160;  Maimon.  H,  Rozeah  III,  5. 

'"  If  the  missile  is  lost  among  others  and  it  cannot  be  ascer- 
tained which  one  was  actually  used,  the  smallest  of  all  is 
selected  and  considered  as  the  one  (Tosefta  Sanh.  XII,  §  4. 
Cmp.  Mekhilta  Nezikin  §  6). 

''^Sanh.  TS*^;  sq.;  Maimon.  H.  Rozeah  III,  1.— The  object 
of  the  examination  is  to  establish  the  malicious  intent  of  the 
offender  (Sifre  I,  §  160 ;  Maimon.  1.  c.  6),  and.  as  in  common 
law,  if  the  missile  is  found  likely  to  produce  the  result,  the 
prisoner  is  presumed  to  have  used  it  with  the  intention  of  kill- 
ing ;  if,  on  the  contrary,  it  is  a  weapon  not  likel_y  to  produce 
death,  that  presumption  is  wanting  (Eoscoe  588).  For  this 
reason  a  metal  instrument,  with  a  point  or  edge,  need  have 


74  CRIMES   AND   PUNISHMENTS. 

his  victim  by  pushing  him  into  fire  or  water,  the  court 
must  enquire  whether  there  was  no  chance  of  escape; 
and  if  by  throwing  him  down  a  precipice,  the  depth 
of  the  fall  must  be  carefully  measured,  and  it  must 
be  judged  whether  that  was  likely  to  bring  about  the 
result.**^  In  short,  the  court  must  critically  examine 
every  circumstance,  however  insignificant,  that  might 
directly  or  indirectly  have  had  some  bearing  on  the 
result  of  the  crime;  and  if  any  reasonable  doubt 
arises  as  to  whether  death  is  indeed  the  direct  effect 
of  violence,  and  not  of  a  natural  cause,  the  benefit 
of  that  doubt  is  invariably  given  to  the  prisoner,  as 
will  appear  later  on.^** 

§  42.  Although  in  general,  to  convict  a  person  of 
murder  the  law  requires  positive  proof  that  the  crime 
was  prompted  by  malice,  there  may  be  cases  in  whicli 
the  criminal  will  be  found  guilty  even  without  mali- 
cious premeditation.  For  instance,  when  one  kills 
another  in  compliance  with  the  latter 's  own  request 
or  command  ;^*^  or  when  one  is  engaged  in  idle  and 

neither  weight  nor  bulk,  for  even  a  needle  can  cause  death 
(Sifre  1.  c;  Sanli.  76";  Maimon.  1.  c.  4). 

'^  Sanh.  76";  Maimon.  H.  Kozeah  III,  7,  9.    Cf.  supra  n.  130. 

'^  Shebuotli  46'' ;  Hullin  10.     Cf.  infra  §  93. 

'^  Cf.  B.  Kama  92a,  93".— This  follows  from  the  Talmudic 
maxim:  "There  is  no  agency  in  crime"  (Kidd.  42b;  B.  Kama 
59;  Yer.  Terumoth  VII,  44c  bot.,  et  al.) ;  and  since  crime  is  for- 
bidden by  a  higher  power  than  the  party  ordering  its  commis- 
sion, the  executor  of  a  criminal  order  cannot  be  considered  an 
agent,  but  is  the  principal,  and  as  such  responsible. — So  in  com- 
mon law,  "he  who  kills  another  upon  his  desire  or  demand,  is 
in  the  judgment  of  the  law  as  much  a  murderer,  as  if  he  had 
done  it  merely  of  his  own  head;  and  the  person  killed  is  not 


MURDER.  *J^ 

dangerous  sports,  as  throwing  stones  or  playing  ball, 
and  though  warned  that  he  is  endangering  the  lives  of 
passengers,    continues    to  play,   and    unintentionally 
,^   strikes  a  man  and  kills  him/^^ 

§  43.  In  order  that  the  full  penalty  attached  to  the 
crime  should  be  inflicted  upon  the  criminal,  Talmudic 
jurisprudence  requires  that  the  crime  shall  have  been 
committed  as  a  whole  by  one  person,  unless  it  cannot  be 
executed  without  assistance. '"''  According  to  this  rule, 
the  person  who  is  the  immediate  cause  of  the  loss  of 
life,  is  answerable  with  his  own  life;  and  with  regard 
to  capital  punishment,  no  cognizance  is  taken  in  Tal- 
mudic jurisprudence  of  accomplices  or  accessories  to 
murder.  Therefore  when  several  shoot  at  a  person 
missiles,  the  size  and  weight  of  neither  of  which  is 
likely  to  cause  his  death,  and  then  one  of  them  hurls 
at  the  same  person  a  missile  which  is  likely  to  produce 
that  result,  this  last  one  is  responsible  with  his  life 
for  that  of  the  victim,  while  the  others  escape  capital 
punishment.  '"^    When  several  parties  simultaneously, 

looked  upon  as  a  fdo  dese,  inasmuch  as  his  assent  was  merely 
void,  being  against  the  law  of  God  and  man"  (Blackstone  IV 
190,  n.  15). 

'^  Sanh.  77b.— By  the  Attic  law  it  was  excusable  to  kill  one 
in  gymnastic  combat  (Smith  770^),  but  common  law  a-rees  witii 
the  Talmudic,  laying  down  the  rule:  "  whenever  death  is  the 
consequence  of  idle,  dangerous,  or  unlawful  sports,  or  of  heed- 
less, wanton  and  indiscreet  acts,  without  a  felonious  intent  the 
party  causing  the  death  is  guilty  of  manslaughter  "  (Blackstone 
1  V,  184). 

'"Sabbath  92";  Beza  22a;  Maimon.  H.  Sabbath  I,  17      Cf 
supra  §  36,  n.  132. 
'*»  Sanh.  78b.     Cf.  infra  n.  297. 


76  CRIMES    AND    PUNISHMENTS. 

or  even  closely  following  each  other,  beat  one,  and 
cause  his  death,  none  of  them  is  punished  capitally,^*' 
§  44.  Still  less  punishable,  though  not  less  of  a  crim- 
inal, is  the  self-murderer;^^"  i.  e.  one  who,  while  in 
full  possession  of  his  senses,  declares  himself  about  to 
commit  suicide,  and  thereupon  deliberately  kills  him- 
self.^"    Being  beyond  the  reach  of  human  justice,  the 

'^  By  this  we  certiiinly  do  not  mean  to  imply  that,  under  the 
Talmudic  dispensation,  murder  in  any  shape  or  degree  could  be 
perpetrated  with  impunity.  Far  from  it.  All  that  the  Kabbis 
aimed  after  was  the  avoiding  of  inflicting  capital  punishment;  but 
they  did  not  fail  to  protect  life.  The  destroyers  of  human  life, 
whom  the  law  could  not  visit  with  capital  punishment— justifi- 
able and  excusable  homicide  excepted, — were  imprisoned  (.supra 
§§  24,  36).  In  all  cases  of  capital  crime,  when  the  accused  was 
found  guilty,  he  was  duly  executed ;  when  not,  when  the  slight- 
est preliminary  requirement  for  conviction  had  not  been  duly 
complied  with,  he  was  declared  to  be  not  guilty,  and  thereupon 
set  at  liberty, — in  some  cases,  after  receiving  a  flogging  (Maimon. 
11.  Sanh.  XVIII,  8).  In  cases  of  bloodshed,  however,  the  law 
went  further  and  was  more  rigorous.  Whoever  occasioned  an 
illegal  loss  of  life,  was  prevented  from  repeating  his  atrocities 
by  being  deprived  of  his  freedom  (Sanh.  81'';  Maimon.  H. 
Eozeah  IV,  9). 

■>«  B.  Kama  91^  Gen.  R.  XXXIV;  Semahoth  II,  §  1.— It  is 
remarkable  that  the  Hebrew  language  has  no  regular  term  ex- 
pressive of  this  crime,  and  Rabbinic  lore  resorts  to  circum- 
locution. Thus:  "Consciously  destroying  one's  self"  is  the 
name  of  the  crime ;  "He  who  consciously  destroyed  himself" 
the  appellation  of  the  criminal.  Most  probabl}^  this  want  of  a 
technical  term  is  owing  to  the  rarity  of  suicides  among  the 
ancient  Hebrews;  for  if  "the  existence  of  a  word  bears  testi- 
mony to  the  existence  of  the  thing"  it  denotes,  or  of  the  act  it 
expresses,  the  non-existence  of  a  proper  term  testifies  to  the  non- 
existence, or  at  least  to  the  people's  ignorance  of  the  thing  or  act. 

"-'  Semahoth  II.  2;  Maimon.  H.  Abel  I,  11;  Yore.  Deah.  c. 
345. — So  tender  is  tba  Talmud  of  man's  honor,  even  posthumous, 


MURDER..  77 

criminal  is  left  to  receive  his  just  desert  at  the  tri- 
bunal of  God.^"  But  as  a  slight  manifestation  of  the 
abhorrence  with  which  the  crime  is  looked  upon,  the 
Rabbis  forbid  all  marks  of  mourning  for  its  author, 
such  as  wearing  sombre  apparel,  eulogizing  him,  and 
like  manifestations  of  grief.  ^" 

that  it  would  not  permit  one  to  be  called  a  suicide,  unless  there 
was  not  the  least  doubt  that  he  was  such.  When  a  person  was 
found  dead,  no  verdict  of  suicide  was  rendered,  even  when  cir- 
cumstances very  strongly  pointed  to  him  as  the  immediate  author 
of  his  own  death,  as  when  he  was  seen  throwing  himself  down  a 
precipice.     In  such  cases  death  was  attributed  to  accident. 

162  B.  Kama  QP;  Gen.  E.  XXXIV;  Maimon.  H.  liozeah 
II,  2. — In  Attica,  suicide  was  not  considered  a  crime  in  point 
of  law,  though  it  seems  to  have  been  deemed  an  oflense  against 
religion;  for,  by  the  custom  of  the  country,  the  hand  of  the 
suicide  was  buried  apart  from  his  body.  In  England,  the 
suicide  was  ignominiously  buried  on  the  highway,  with  a  stake 
driven  through  his  body,  and  all  his  goods  and  chattels  were 
forfeited  to  the  King:  "hoping  that  his  care  for  either  his  own 
reputation,  or  the  welfare  of  his  farail}^  would  be  some  motive 
to  restrain  him  from  so  desperate  and  wicked  an  act"  (Black- 
stone  ly,  189  sq.).  The  Kabbis  took  the  more  philosophic 
view  of  the  crime,  and  concluded  to  "neither  honor  the  crim- 
inal nor  insult  him"  (Semahoth  II,  1);  for,  as  Beccaria  (§32) 
says:  "He  who  deliberately  dispenses  with  the  happiness  of 
life,  and  hates  it  so  strongly  as  to  prefer  an  unhappy  eternity, 
cannot  be  moved  to  restraint  by  the  less  effective  and  more 
remote  consideration  of  children  and  parents." 

'•3  Semahoth  II,  1 ;  Maimon,  H,  Abel  1, 11. — As  in  homicide  so 
in  suicide,  there  are  cases  which  the  Talmud  considers  excusable 
or  justifiable,  if  not  meritorious.  Such  are :  when  the  chief  of  a 
vanquished  army  is  sure  of  disgrace  and  death  at  the  hands  of 
the  exulting  conqueror,  as  was  the  case  of  Saul  (1  Sam.  XXXI, 
4);  or  when  one  has  reason  to  fear  being  forced  to  renounce  his 
religion  (Guittiu  57".     Cf.  II  Mace.  XIV,  37-46).     Under  all 


78  CRIMES    AND    PUNISHMENTS. 


7.  Persons  Indictable, 

§  45.  According  to  the  Talmud,  all  persons,  with 
the  few  exceptions  to  be  presently  stated,  are  amena- 
ble to  the  laws  of  the  country,  and  therefore  indictable 
for  crime.  As  the  Hebrew  commonwealth  was  based 
upon  the  principle  of  national  unity  and  equality,*" 

other  circumstances,  the  Rabbis  consider  it  criminal  to  shorten 
one's  own  life,  even  when  the  person  is  undergoing  tortures 
which  must  soon  end  his  earthly  career  (Ab.  Zara  18«). 

it;4  The  idea  of  national  unity  was,  in  the  age  of  its  originator, 
Moses,  as  new  and  startling  as  the  doctrine  of  the  divine  unity. 
The  most  ancient  sages  made  their  ideas  of  the  material  universe 
the  type  of  their  political  and  social  institutions.  The  Egyp- 
tian priest  regarded  the  universality  of  things  as  composed  of 
two  distinct  essences:  the  one  intellectual  and  active,  the  other 
physical  and  passive  (Hesiod  I,  2).  This  philosophic  dogma 
had  a  predominating  influence  on  the  civil  state.  In  the  polit- 
ical system  framed  by  them,  the  spiritual  essence  of  the  uni- 
verse was  the  symbol  of  the  sacerdotal  aristocrac}'^ ;  while  the 
baser  material  essence  represented  the  common  people.  Thus 
the  higher  and  lower  classes,  the  nobility  and  commonalty, 
were  separated  by  a  gulf,  as  impassable  as  that  which  divides 
the  inhabitants  of  different  planets.  Moses,  endowed  with  a 
capacity  and  animated  with  a  principle  higher  than  any  preceding 
philosopher  or  statesman,  rejecting  this  doctrine  of  dualism  in 
the  formation  of  his  commonwealth,  substituted  in  its  place 
the  principle  of  national  unity.  His,  however,  was  not  that 
species  of  unity,  which  the  world  has  since  so  often  seen,  in 
which  vast  multitudes  of  human  beings  are  delivered  up  to  the 
arbitrary  will  of  one  man.  It  was  a  unity,  effected  by  the 
abolition  of  caste;  a  unitj^  founded  on  the  principle  of  equal 
rights;  a  unity,  in  which  the  whole  people  formed  the  state, 
contrar}'^  to  what  happened  in  Egypt,  where  the  priesthood  was 
the  state,  and  contrary  to  the  celebrated  declaration  of  Louis 


PERSONS    INDICTABLE.  79 

the  Israelite,  the  Levite  and  the  priest,  thefreeborn  and 
the  slave,  were  alike  subject  to  the  laws.  Even  the 
high  priest  could  be  called  upon  to  answer  before  a 
competent  judiciary  for  his  infraction  of  the  laws, 
and  judgment  given  against  and  executed  upon  him.^®* 
Talmudic  jurisprudence  knows  of  no  privilegium  cleri- 
cale,  which  so  much  troubled  other  states  in  earlier 
and  even  later  ages.^®^     The  Jewish  legislators,  from 

XIV,  who  avowed  himself  to  be  the  state  (Wines,  B.  II,  c.  I). 
This  principle  manifests  itself,  in  every  ancient  Jewish  institu- 
tion, its  spirit  pervading  every  page  of  the  Talmud,  the  pro- 
fessed commentary  of  the  Mosaic  system  (cf.  supra  n.  33). 
Nowhere,  however,  does  this  spirit  appear  more  clearly,  nor 
pregnant  with  more  importance,  than  in  the  Talmudic  enact- 
ments respecting  life  and  liberty,  although  they  were  elaborated 
in  ages  of  barbarism  and  tyranny,  when  penal  laws  magnified 
the  offense  according  to  the  littleness  of  the  oftender,  consider- 
ing that  as  almost  venial  in  a  man  of  high  rank,  which  brought 
terrible  retribution  upon  persons  of  inferior  rank  (cf.  Montes- 
quieu, B.  VI,  c.  XV;  Pike,  History  of  Crime  I,  p.  13). 

'6*Sanh.  18^;  Mairaon.  H.  Kle  Mikdash  I,  8. 

'•fi  One  needs  to  be  reminded  only  of  the  difficulties  under 
which  Europe  labored  during  the  supremacy  of  papal  authority, 
especially  from  and  after  the  beginning  of  the  twelfth  century, 
when  not  only  every  one  who  had  received  the  tonsure,  but 
'"orphans  and  widows,  the  stranger  and  the  poor,  the  pilgrim 
and  the  leper,  under  the  appellation  of  persons  in  distress  (mise- 
rahiles  personac)  came  within  the  peculiar  cognizance  and  pro- 
tection of  the  church ;  nor  could  they  be  sued  before  any  lay 
tribunal.  And  the  whole  body  of  crusaders,  or  such  as  merely 
took  the  vow  of  engaging  in  one,  enjoyed  the  same  clerical 
privileges"  (Hallam  1.  c,  c.  VII).  By  Talmudic  law,  based 
on  Scriptural  ground  (Exodus  XXI,  14),  the  priest,  even  while 
engaged  in  the  performance  of  his  sacerdotal  offices  at  the  altar, 
is  subject  to  the  civil  law,  and  must  be  removed  thence  to  sutfer 
the  penalty  of  his  crime  (Mekhilta  Nezikin,  §  4;  Sanh.  35*^). 


80  CRIMES    AXL>    PUNISHMENTS. 

Moses  down  to  the  comijletion  of  the  Talmud  (in  the 
fifth  century  C.  E.),  were  too  patriotic  and  discreet 
to  tolerate  in  their  midst  a  body  of  men  protected 
by,  and  at  the  same  time  independent  of  the  laws 
established  for  all  the  citizens  of  the  state.  There- 
fore, too,  were  the  members  of  the  royal  house  of 
David  subject  to  the  authority  of  the  general  laws.'^ 
§  46.  Exceptions. — That  ^'  dicresspe^'minas,  or  threats 
and  menaces  which  induce  a  fear  of  death  or  other 
bodily  harm,"  exempt  one  from  punishment  for  all 
crimes,  except  murder  and  the  sexual  sins,  we  have 
seen  above. ^^  The  other  exemptions  are:  Deafness, 
Idiocy,  and  Nonage.  In  any  one  of  these  conditions, 
a  person  is  not  presumed  to  be  possessed  of  the  capa- 
bility of  premeditation  or  of  willing  in  general,  and  of 
malice  in  particular. ^^*     Accordingly  Talmudic  juris- 

'«'Sanh.  19a:  Maimon..  H.  Sanh.  II,  5;  id.  H.  Melakhhn 
III.  7. — With  the  change  of  dynasties  in  the  Maccabean  epoch, 
the  subjection  of  royalty  to  the  judiciary  was  abolished,  owing 
to  the  overt  insubordination  of  Hyrcan  II,  to  the  enactments 
of  the  Syuhedrion  (Sanh.  ib.  Cf.  Graetz  III,  n.  17).— In  Eome 
we  hear  Emperors  Severus  and  Antoninus  asserting  their  supre- 
macy to  the  coercive  powers  of  the  laws  (Just.  Inst,  L.  II,  Tit. 
XVII,  §  8);  and  Blackstone  supposes  the  King  incapable  of 
committing  a  folly,  much  less  a  crime.  He  thus  accounts  for 
the  striking  omission  of  the  law  to  make  provision  to  remedy 
such  an  impossible  grievance  (cf.  Com.  I,  244  sq.;  IV,  33). 

'^  Cf.  supra  §  14  sq. — Common  law  says:  Actus  vie  invito 
/actus,  non  est  mens  actus,  An  act  done  by  me  against  my  will 
is  not  my  act  (Bouvier  Diet.  s.  v.  Maxim). 

'«»  Makhshirin  III,  §  8,  VI,  §  1 ;  Mekhilta  Xezikin  §  4.— Com- 
mon law  argues:  "As  a  vicious  will,  without  a  vicious  act,  is 
no  civil  crime;  so  on  the  other  hand,  an  unwarrantable  act 
without  a  vicious  will,  is  no  crime  at  all"  (Blackstone  IV,  21); 


PERSOXS    IXDICTABLE,  81 

prudence  declares  the  collision  with  these  parties  to 
be  always  disadvantageous:  when  one  injures  them, 
he  is  subject  to  the  legal  penalties;  but  when  they 
inflict  injury,  they  cannot  be  held  responsible.^""  The 
Talmud  almost  invariably  cites  these  three  classes 
together;  but  we  must  see  what  is  understood  by  them 
severally. 

§  47.  Deafness,  to  exempt  one  from  punishment  for 
crime,  must  be  accompanied  by  dumbness,^^'  whether 
congenital  or  adventitious. '''^  When  one  or  the  other 
is  wanting,  the  oifender  is  not  exempted. ^^^ 

§  48.  By  idiot  the  Talmud  understands  not  only  the 
confirmed  lunatic,  but  also  the  monomaniac:  as  the 
one  who  habitually  and  unnecessarily  exposes  himself 
to  danger;  or  who  betrays  general  destructive  proclivi- 
ties, as  by  willfully  tearing  his  clothes;  or  who  mani- 
fests any  other  reprehensible  idiosyncrasy.  ^^^  The 
periodical   maniac,    however,  is  amenable  to  law  for 

wherefore  "an  idiot,  or  a  person  born  deaf  and  dumb,  or  one 
who  IS  ??o«  compos  at  the  time,  cannot  be  approver;"  yet  "if 
he  who  wants  discretion  commit  a  trespass  against  the  person 
or  possession  of  anotlier,  he  shall  be  compelled  in  a  civil  action 
to  give  satisfaction  for  the  damage"  (ib.  25,  n.  5). 

""  B.  Kama  87",  et  al. 

'"  Temmoth  I,  §4;  Hagiga  2". 

'^2  Cf.  Sifthe  Daath  ad  Yore  Deah  I,  §  5.— The  same  is  the 
rule  of  common  law  (cf.  Blackstone  IV,  25). 

"3  Tosefta  Terumoth  I,  §  2;  Hagiga  2".— Roscoe  (1.  c.  95) 
says:  **A  person  born  deaf  and  dumb,  though  prima  facie  in 
contemplation  of  law  an  idiot,  yet  if  it  apj^ear  that  he  has  the 
use  of  his  understanding,  he  is  criminally  answerable  for  his 
acts." 

'«  Yer.  Terumoth  I,  §  1,  p.  4Ub  top;  Hagiga  Z^;  Guittin  68''. 

6 


82  CRIMES   AND   PUNISHMENTS. 

actions  committed  during  his  lucid  periods;*'^'  while 
temporary  aberration  of  mind  produced  by  the  offender 
himself,  as  by  drimkenness^does  not  exempt  him  from 
the  consequences  of  infringing  the  laws  of  justice. ^^^ 
But  when  a  person  is  so  intoxicated  as  to  be  entirely 
unconscious  of  his  own  movements,  he  is  considered 
for  the  time  being  an  idiot,  and  not  accountable  for 
his  actions  committed  while  in  that  state. ^'^ 

§  49.  Nonage. — The  Talmud  divides  the  age  of 
minors  into  three  periods:  Infancy,  from  birth  to  six 
years  ;'^^  Imjmhescence,  from  the  beginning  of  the  seventh 
year  to  the  first  day  of  the  twelfth  or  thirteenth  year, 
according  as  the  person  is  a  female  or  a  male;^^®  and 
Adulescence,  from  that  age  to  twenty  years,  ^^  when  every 

"=  Yer.  1.  c;  Tosefta  Terumoth  I,  §  3. — So  by  common  law. 
•'If  a  lunatic  has  lucid  intervals  of  understanding,  he  shall 
answer  for  what  he  does  in  those  intervals,  as  if  he  had  no 
deficiency"  (Blackstone  IV,  25). 

"«  Tosefta  Terumoth  III,  §  1 ;  Erubiu  65*.— The  Eoman  law 
made  allowances  for  this  vice;  but  the  law  of  England,  con- 
sidering how  easy  it  is  to  counterfeit  this  excuse,  and  how  weak 
an  excuse  it  is  (though  real),  will  not  suffer  any  man  thus  to 
privilege  one  crime  by  another  (Blackstone  lY,  26). — The  Tal- 
mud says:  ''Drink  not,_and  tko"  wi]t._aoi_sln "  (Berakhoth 
29''.     Cf.  Tanhuma  ad  Gen.  IX,  20;  Yalkut  I,  §  61). 

'■"  Erubin  65^;  Maimon.  H.  Ishuth  IV,  18. 

^''^  Ketane  Ketanim  {=VfeQ  little  ones).  Kethuboth  65^  Cf. 
B.  Bathra  lbb\ 

™  Naanith  (Kethuboth  29=»  sq.;  Nidda  45'').— But  neither  is 
considered  pubescent,  even  after  reaching  the  prescribed  age, 
unless  he  or  she  can  show  at  least  two  hairs  on  any  part  of  the 
body,  except  the  head  (Kidd.  16*;  Xidda  45^  et  al.). 

'*«  Bagrutn  (Kidd.  4*;  B.  Bathra  155").— That  stage,  how- 
ever,  does  not  really  begin  for  either,  until  six  months  and 


PERSONS    INDICTABLE.  83 

person,  except  the  hermaphrodite,  becomes  a  major.  **' 
But  while  it  makes  these  distinctions,  Rabbinic  law 
nowhere  states  at  what  particular  age  a  person  ceases 
to  be  a  minor,  with  reference  to  liability  to  capital 
punishment,^^^  and  the  student  is  left  to  learn  that 
particular  age  by  induction. 

§  50,  That  impubescents  are  exempt  from  capi- 
tal punishment,  there  is  no  doubt;  for  the  Talmud 
explicitly  states  that  a  child  nine  years  and  one  day 
old,  which  has  committed  a  capital  crime,  cannot  be 
condemned  to  death.  ^*^     Moreover,  even  the  prodigal 

three  months  respectively  after  the  close  of  the  preceding  age 
(Yer.  Yebamoth  I,  §2,  p.  3«  top;  Ketliuboth  89^  Sanh.  69^).— 
The  division  of  minority  into  several  diflerent  stages  was  estab- 
lished in  Roman  law  also.  Thus :  infancy,  from  birth  until 
the  end  of  the  seventh  year ;  impuhescence^  from  seven  to  twelve 
for  females,  and  to  fourteen  for  males ;  adulescence,  from  twelve 
and  fourteen  respectively  to  twenty-five,  after  which  the  per- 
sons became  majores  (Smith  537''). 

""  Kiddushin  4%  et  al. 

^-2  To  corporal  punishment  a  person  becomes  liable  at  the  age 
of  pubescence.  Thus  the  prodigal  son  (supra  §  32,  n.  106)  is 
at  that  age  judicially  flagellated  or  otherwise  flogged  for  his 
ofi"enses  (Sifre  II,  §218;  Sauh.  71^). 

'■^  Sanh,  69'' ;  et  al, — In  common  law  there  obtains  a  maxim  : 
Mdlitia  supplet  aetatem  (Malice  supplies  the  want  of  age, — Black- 
stone  lY,  23),  and  an  instance  is  recorded  (ib,  24)  where  a  boy 
of  eight  years  was  tried  for  firing  two  barns;  and  it  appearing 
that  he  had  malice,  revenge  and  cunning,  he  was  found  guilty, 
condemned  and  hanged  accordingh', — By  Talmudic  law,  no 
matter  how  much  malice  and  cunning  a  child  may  be  possessed 
of,  he  cannot  be  found  guilty  of  a  capital  crime,  for  there  the 
legal  maxim  is.  "A  child  has  no  discretion  "  (Makhshiriu  III. 
§  8,  VI.  §  1 ;  Mekhilta  Nezikin  §  4),  and  normal  cases  are  accord- 
ingly judged,  not  by  the  degree  of  the  actor's  mental  develop- 


84  CRIMES   AND    PUNISHMENTS. 

son  who  is  not  convicted  for  his  peccadillos  in  the 
past,  but  with  a  view  to  the  future,  cannot  he  adjudged 
as  such  ere  he  has  reached  the  stage  of  puberty.'^* — 
Accordingly  it  might  seem  that  with  pubescence  lia- 
bility to  capital  punishment  begins.  The  Talmud 
does,  indeed,  speak  of  that  age  as  the  age  of  respon- 
sibility;'^ but  that  refers  to  religious  obligations  and 
the  marital  relations.'^     And  since,  with  reference  to 


ment,  but  by  his  age.  It  is  only  with  reference  to  the  validity 
of  certain  religious  acts  on  the  part  of  a  child,  that  the  Rabbis 
say:  '"The  object  of  the  child  appears  from  his  act"  (Hullin 
13"). 

'8^  Sifra  II,  §218;  Sanh.  68^,  71^  sq.— The  Rabbis  say:  "Let 
the  incorrigible  die  while  in  a  state  of  comparative  innocence, 
rather  than  live  and  go  from  bad  to  worse."  This  agrees  with 
the  Roman  view  of  punishments.  Seneca  (Of  Anger  B  II,  c. 
31)  says:  "The  end  of  all  correction  is  either  the  amendment 
of  wicked  men,  or  to  prevent  the  influence  of  ill  example ;  for 
men  are  punished  with  a  respect  to  the  future :  not  to  expiate 
offenses  committed,  but  for  fear  of  worse  to  come." 
'S5  B.  Bathra  156^;  Aboth  V,  §  21;  Nidda  52\ 
"*  The  idea  that  a  child  becomes  responsible  for  all  its  own 
actions  at  the  age  of  pubescence,  is  universal  among  the  Jewish 
casuists,  and  is  plausibly  supported  by  two  Rabbinic  dicta,  to 
wit:  "A  man  is  obliged  to  take  pains  with  his  sons  until  they 
are  thirteen  years  old,  after  which  he  must  bless  the  Lord  who 
has  released  him  from  responsibility  for  them"  (Gen.  R.  c. 
63) ;  and  "The  lower  courts  punish  persons  of  thirteen  3-ears" 
(Tanhuma  Korah,  ed.  Buber,  §  6).  But  a  careful  study  of  these 
passages  together  with  their  respective  contexts  does  not  bear 
out  the  inference  of  the  casuists.  The  first  passage  obviously 
refers  to  a  father's  duties  of  supporting  his  little  children  (Keth. 
49'';  eSb;  Maimon,  H.  Ishuth  XII,  14),  and  of  instructing  his 
sons  in  the  law  and  a  trade  (Keth.  ib.;  Kidd.  30^.  Cf.  Matnath 
Kehuna  ad  Gen.  R.  1.  c,  and  Lorje  ib.).— The  last  might,  in- 


PERSONS    INDICTABLE.  8o 

crime,  the  Talmiul  does  not  divide  the  different  stages 
of  minority,  but  considers  the  end  of  the  period  the 

deed,  be  construed  to  imply  that  a  child,  at  the  age  of  pubescence, 
becomes  a  responsible  being,  accountable  for  his  actions  before  a 
human  tribunal ;  but  only  in  exceptional  cases !  The  passage  in 
question  reads  as  follows:  "Dire  are  the  consequences  of  sedition  i 
The  Supreme  Judge  does  not  punish  an  oflending  person  of  less 
than  ticenty  3'ears  [cf.  n.  188];  the  courts  below  punish  persons  of 
thirteen  years;  while  of  the  revolting  party  of  Korah  even  new- 
born infants  were  consumed  and  swallowed  up  by  the  nether 
world !"  (Cf.  Num.  XVI,  32).— The  author  speaks  of  sedition, 
and,  as  in  that  connection  he  makes  the  lower  courts,  human  tri- 
bunals, punish  children  of  thirteen  years,  we  must  suppose  that  he 
means  seditious  children  only;  otherwise  we  may  justly  ask,  in  the 
words  of  the  Talmud  (Sanh.  82^) :  "Is  it  thus,  that  where  Heaven 
sees  fit  to  condone,  men  condemn  to  death  ?  I  "  This  is  contrary 
to  the  spirit  of  Talmudic  jurisprudence,  which  does  not  author- 
ize the  infliction  of  capital  punishment  even  for  culpable  homi- 
cide (supra  §  37),  declaring  it  to  be  free  from  human  punishment 
(i.  e.  as  to  exacting  life  for  life),  though  subject  to  punishment 
at  the  instance  of  the  heavenly  tribunal  (cf.  sources  quoted  n. 
135;  B.  Kama  56^  et  al.)  ! — Moreover,  a  person  under  twenty 
years  Avas,  by  Rabbinic  law,  not  competent  to  dispose  of  his 
real  estate,  or  even  to  be  a  witness  in  a  case  concerning  real 
estate  (B.  Bathra  155''  sq.;  Maimon.  H.  Mekhira  XXIX,  12  sq.); 
and  should  the  law,  declaring  a  person  incompetent  to  transact 
a  little  business,  declare  the  same  person  to  have  full  capacity 
for  crime?  ! — Therefore,  the  dictum  that  "  human  courts  punish 
persons  of  thirteen  years,"  if  capitally,  must  be  applied,  as  the 
context  warrants  to  the  case  of  the  prodigal  or  '■'rebellious  son" 
only,  who  may  be  punished  as  such,  on  the  sustained  accusa- 
tion of  both  his  parents  (supra  n.  106),  between  the  beginning 
of  the  age  of  puberty  (thirteen  years  and  one  day)  and  three 
months  thereafter  (Sifra  II.  §  218;  Sanh.  69*;  Maimon.  H. 
Mamrim  VII,  6),  to  prevent  him  from  committing  more  hein- 
ous crimes  (n.  184) ;  or  it  must  be  applied  to  corporal  punish- 


86  CRIMES    AND    PUNISHMENTS. 

same  as  the  beginning  thereof,"*^  we  may  reasonably 
conclude  that,  according  to  Talmudic  law,  liability 
to  capital  punishment  begins  with  the  beginning  of 
the  person's  majority — at  the  age  of  tioenty}^ 

meat,  to  which  a  person  may  legally  be  condemned  after  reach- 
ing the  age  of  puberty  (n.  182),  and  not  before  it  (Sanh.  Q%^). 

"^  B.  Bathra  155^;  oSj^idda  45''.— By  the  civil  law,  in  the  case 
of  a  pubertati  proximus  (i.  e.  a  person  in  the  last  half  of  the 
period  of  impubescence),  there  was  a  legal  presumption  of  a 
capacity  to  understand  the  nature  of  crimes ;  therefore  the  act 
determined  the  guilt  or  innocence  of  the  offender,  according  as 
it  was  one  which  he  should  have  known  to  be  illegal,  or  one 
which  a  young  person  is  not  expected  to  understand  (cf.  n.  183). 

''^'~  The  Talmud  repeatedly  declares  that  "  Heaven  visits  no 
punishment  on  man  for  sins  committed  before  the  age  of  twenty  " 
(Yer.  Biccurim  II.  §  1,  p.  64c  bot.;  Sabbath  SO^;  Yer.  Sanh. 
XI,  §7,  p.  SO*^;  Nidda  45*;  Num.  R.  c.  18;  Tanhuma  1.  c). 


II.  THE  SYNHEDRION. 

1.  Organization  and  Jurisdiction. 

§  51.  For  the  administration  of  justice  under  the 
Talmudic  dispensation,  there  were  three  classes  of 
courts  :  the  Great  Synhedrion,^^  the  Lesser  Sjnhe- 
drion,  and  the  Court  of  Three, ^^ 

§  52.  The  Court  of  Three,  as  its  name  implies, 
consisted  of  three  members.  Its  jurisdiction  was  con- 
fined to  civil  affairs,  and  to  such  penal  cases  as  in- 


''8  In  these  pages  the  term  Synhedrion  is  generally  used,  it 
.  being  appropriate  to  the  courts,  whose  jurisdiction  extended  over 
capital  cases,  of  which  we  mainly  treat.  This  name  was  given 
at  Athens  to  any  magisterial  or  official  body,  as  to  the  court  of 
Areopagus ;  or  to  the  place  where  they  transacted  business,  their 
board  or  council  room  (Smith  935'^). 

'9^  Sanh.  2*1;  17^. — The  individual  members  of  the  several 
courts  are  frequently  styled  Darjamm  (=judges),  and  in  the  ag- 
gregate Beth  Din  (=house,  court  of  justice),  similar  to  the  Attic 
appellation  Dicasteriort,  which  indicated  the  judicial  body  {Di- 
castes)  that  sat  in  court,  as  well  as  the  place  at  which  they  held 
their  sessions  (Smith  356^).  In  Rome  the  reverse  was  the  case. 
There  the  term  jus  was  transferred  from  the  laio  to  the  place 
where  the  law  was  dispensed :  an  application  of  the  name  of 
what  is  done  to  the  place  where  it  is  done  (ib.  562a),  But  while 
the  "Court  of  Three"  shared  this  appellation  with  the  highest 
tribunal,  it  was  a  kind  of  judiciary  committee  onh^  with  very 
limited  criminal  jurisdiction,  and  must  therefore  not  be  con- 
founded with  the  other  courts,  which  are  frequentlv  termed 

87 


88  THE    SYNHEDRION. 

volvecl  fines  or  flagellation  ouly.'^' — Such  tribunals 
were  established  at  every  place,  however  small. ^^^ 

§  53.  The  Lesser  Synhedrion  consisted  of  twenty- 
three  members,  and  was  established,  in  Palestine,  in 
every  city  or  town  having  a  male  population  of  not 
less  than  one  hundred  and  twenty  souls,  and,  in  other 
countries  inhabited  by  Jews,  in  each  district  or  pro^ 
vince"^;  while  Jerusalem  had  two  such  courts.^'* — 
Its  jurisdiction  extended  over  capital  as  well  as  over 
civil  matters. ^^^ 

§  54.  The  Grreat  Synhedrion  consisted  of  seventy-one 
members.  This  was  the  highest  court  in  Judea,  and 
was  akin  to  the  Senate  of  the  Roman  Republic.  Its 
authority  was  supreme  in  all  matters:  civil  and  politi- 

Si/nheh-in,  or  Syiihedre  gedolali,  when  reference  is  had  to  the  Ch-eat 
Synhednon. 

'9'  8anh.  2«;    Maimon.  H.  Sanh.  V,  8. 

'S'^  Maimon.  11.  Sanh.  I,  4. — This  court  is  a  purely  Rabbinic 
institution,  at  least  in  so  far  as  civil  cases  are  concerned,  where- 
fore the  casuists  are  of  opinion  that  a  decision  of  even  a  single 
judge,  provided  he  is  recognized  as  an  expert  in  the  law,  and 
duly  authorized  to  act  in  the  capacity  of  judge,  is  perfectly  valid 
(cf.  Sanh.  S'';  Maimon.  ib.  11,  10).  Among  the  Romans,  in 
many  cases  a  single  judex  was  appointed  (Smith  550''). 

'«  Sanh.  2" ;  Tosefta  ib.  Ill,  §  10 ;  Maccoth  T". 

'*•  Sanh.  86i>;  SSt^. — Xot  only  because  Jemsalem  was  a  very 
populous  cit}-,  but  also  because  they  exercised,  in  addition  to 
original  jurisdiction,  certain  appellate  functions  (cf.  infra  n.  226). 

'»  Sanh.  2a ;  Maimon.  H,  Sanh.  Y.  2.— But  its  authority,  too, 
was  to  a  great  extent  circumscribed,  inasmuch  as  it  not  only 
was  subject  to  appeal  (cf.  infra  §  62),  but  it  had  no  jurisdiction 
in  a  number  of  cases,  such  as  those  touching  f:\l.se  prophecy,  or 
those  in  which  the  person  of  the  king  (supra  §  45,  n.  167)  or  of 
the  high  priest  was  concerned  (Sanh.  ib.;  Maimon.  1.  c.  1). 


ORGANIZATION    AND   JURISDICTION,  89 

cal,  social,  religious  and  criminal.  Without  the  sanc- 
tion of  this  august  body,  no  public  action  could  legally 
be  inaugurated.^^     Its  opinion  was  final/^'and  to  its 


'^Sanh.  2^:  Maimon.  H.  Sanh.  V,  1.— While  all  writers  on 
ancient  Jewish  institutions  agree  as  to  the  great  importance  of 
its  prerogatives  and  functions,  great  diversity  of  opinion  exists 
regarding  the  origin  and  antiquit}-  of  this  justly  celebrated  coun- 
cil.    Rabbinic  lore  (Sifre  I,  §92;  Sanh.  2";  Maimon.  H.  Sanh. 

I,  3)  identifies  the  Great  Synhedrion  with  the  council  of  elders 
established  by  Moses  (Xum.  XI,  16,  sq.),  ahd  consisting  of  an 
equal  number,  including  Moses  himself;  and,  accordingly, 
claims  that  this  august  body  continuoush-  existed  from  the  days 
of  Moses  until  the  extinction  of  the  Jewish  patriarchate  (425  C. 
E. — cf.  Graetz.  IV,  n.  22).  On  the  other  hand,  some  modern 
scholars  ascribe  its  origin  to  a  comparatively  recent  date,  argu- 
ing that,  inasmuch  as  a  national  council  of  this  kind  can  be 
traced  back  no  farther  than  the  Apocryphal  books  of  Maccabees 
(cf.  I  Mace.  XII.  6.  35).  and,  inasmuch  as  the  very  name  of 
that  council,  Synhedrion,  is  of  Greek  origin,  and  probably  did 
not  come  in  vogue  among  the  Hebrews  before  the  Greeks  had 
invaded  Judea, — this  council  cannot  antedate  that  epoch.  We 
are  inclined  to  accept  the  traditional  opinion  on  this  vexed 
question,  believing  that  whatever  vicissitudes  it  experienced,  the 
council  maintained  a  continuous  existence  from  the  very  begin- 
ning of  Israel's  independence.     Raphall  (Post  Bibl.  Hist.,  vol. 

II,  pp.  106-110)  Avho,  with  great  acumen,  traces  its  origin  and 
progress,  thus  concludes  his  interesting  enquiry:  "We  have 
thus  traced  the  existence  of  a  council  of  Zekenhn  [elders]  founded 
by  Moses,  existing  in  the  days  of  Ezekiel  [YIII,  11-12],  restored 
under  the  name  of  Sahay  ieJiinIai  [Elders  of  the  Jews — Ezra  VI, 
8;  cmp.  ib.  X,  8,  where  the  original  appellation  Zekenivi  is 
used]  under  the  Persian  dominion,  knoAvn  as  Gerousia  [eldei's — 
Mace.  1.  c.  et  al.],  during  the  supremacy  of  the  Greeks,  and  as 
Sanhedrin  under  the  Asmonean  kings  and  under  the  Romans." 
As  to  the  Greek  name  of  this  Jewish  council,  the  same  historian 
argues,  that  "it  affords  no  proof  against  the  antiquitj'  of  its  in- 


90  THE   SYNHEDRION. 

jurisdiction  was  subject  even  the  high  priest,  as  also 
the  royal  house  of  David. ^^* 

§  55.  Each  Synhedrion  organized  by  selecting  from 
among  its  foremost  members  a  presiding  officer.  That 
officer  was  styled,  in  the  Lesser  Synhedrion,  Rosh 
(head,  chief,  prcetor) ;  in  the  Great  Synhedrion,  Nas^ 
(prince,  princeps)}^     His  deputy  was  called  Ab-heth- 

stitution;  since,  however  often  the  name  was  altered,  the 
council  itself  never  ceased  to  exist." 

'9' Sanh.  88b;  Maimon,  H.  Mamrim  III,  8. — Original  juris- 
diction it  had  in  certain  celebrated  cases  only  (Sanh.  2^;  Mai- 
mon. H.  Sanh.  V,  1) ;  appellate  functions  in  all  (infra  §  62,  n. 
220). 

'9'^  Cf.  supra  n.  167.— What  Gibbon  (c.  Ill)  says  of  the  pre- 
rogatives of  the  Eoman  Senate  is  only  the  counterpart  of  those 
possessed  by  this  great  council  of  the  ancient  Jews.  "With 
regard  to  civil  objects  it  was  the  supreme  court  of  appeal  [cf. 
infra  n.  226] ;  with  regard  to  criminal  matters,  a  tribunal,  con- 
stituted for  the  trial  of  all  offenses  that  were  committed  by  men  in 
any  public  station,  or  what  alfected  the  peace  and  majesty  of  the 
Roman  people.  The  exercise  of  the  judicial  power  became  the 
most  frequent  and  serious  occupation  of  the  senate;  and  the  im- 
portant causes  that  were  pleaded  before  them,  aft'orded  a  last 
refuge  to  the  spirit  of  ancient  eloquence.  [The  Jewish  tribunal 
did  not  allow  forensic  art  to  sway  its  opinion.  Cnf.  infra  n. 
327].  As  a  council  of  state,  and  as  a  court  ot  justice,  the  senate 
possessed  very  considerable  prerogatives;  but  in  its  legislative 
capacity,  in  which  it  was  supposed  virtually  to  represent  the 
people,  the  rights  of  sovereignty  were  acknowledged  to  reside  in 
that  assembly.  Every  power  was  derived  from  their  authority, 
every  law  was  ratified  by  their  sanction." 

'»  Altogether  the  Talmud  names  twenty-one  such  princes  who 
successively  presided  over  the  highest  tribunal  in  Judea,  during 
a  period  of  six  hundred  years  (180  B.  C.  E.— 425  C.  E.),  but 
whether  all  bore  the  official  title  is  rather  doubtful.    Those  who 


ORGANIZATION    AND   JURISDICTION.  91 

din  (father,  chief  of  the  court),  and  his  second  deputy, 
Hakham  (wise  man,  sage,  Quaesitor)  ."^ 

§  56,  The  other  officials  necessary  to  complete  the 
organization  were  two  secretaries,^^  and  two  messen- 
gers or  servitors  {Apparitoi^es)  ^^"^ 


occupied  that  position  during  the  first  quarter  of  this  period,  are 
never  quoted  in  Rabbinic  lore  with  the  title,  though  the  Talmud 
(Hagiga  16*,  et  al.)  explicitly  states  that  they  were  princes  in 
their  respective  days.  Ilillel  the  Great  (30  B.  C.  E.— 10  C.  E.) 
is  the  first  of  those  whom  the  Talmud  often  styles  Nasi;  and  he, 
being  a  lineal  descendant  of  the  house  of  David,  the  patriarchate, 
with  but  slight  interruption,  remained  hereditar}'  in  his  family, 
until  the  suppression  of  that  office.  The  Greek  appellation  of 
that  office  was  Ethnarch  (prince  of  the  peop!<',).  which  indicates 
that  the  office  carried  with  it  princely  prerogatives,  almost 
equivalent  to  royalty  itself,  even  under  foreign  domination. 
The  usual  title,  Patriarch,  also  implies  supreme  functions 
(Graetz  IV,  p.  67;  ib.  n.  22). 

»«  Tosefta  Sanh.  VII,  §  8 ;  Horayoth  13b.— The  functions  of 
the  last  named  officer  seem  to  have  been  like  those  of  the  modern 
Speaker,  "  to  lay  all  matters  before  the  house  "  at  the  Synhedrial 
sessions  (of.  Sabbath  33'';  Guittin  67*;  glossaries  ad  1.;  Graetz 
1.  c). 

*"  Sanh.  34a,  36b_ — Whether  one  recorded  the  testimony  and 
arguments  of  the  prosecution,  and  the  other  those  of  the  defense; 
or  both  recorded  all  the  proceedings  on  either  side,  cannot 
clearly  be  established.  From  the  language  of  the  Talmud  either 
view  might  be  taken,  but  Maimonides  adopts  the  first.  There  is, 
however,  another  tradition  which  speaks  of  three  secretaries : 
one  of  whom  noted  down  all  proceedings  on  the  side  of  the 
prosecution,  the  other  those  of  the  defense,  while  the  third  trans- 
cribed all  the  proceedings  on  both  sides  (Sanh.  36''). 

^  Sanh.  17'';  Maimon.  H.  Sanh.  I,  9.— Their  duties  were  like 
those  of  the  Roman  viatores  and  lictores  combined  :  to  execute 
the  orders  of  the  court  both  as  to  summoning  people  and  ad- 
ministering flagellations  or  scourgings  to  the  convicts.  Rabbi 
Elazar  says:  "Where  there  are  officers  [to  enforce  the  law], 


92  THE   SYNHEDRION. 


2.  Qualifications, 

§  57.  Numerous  and  varied  are  the  qualifications 
required  to  render  one  eligible  to  judicial  honors. 
Besides  being  a  worthy  man,  possessed  of  true  piety 
and  an  untarnished  character,  the  candidate  must  be  a 
Jew  and  a  lineal  descendant  of  Jewish  parents  ;  ^^  thor- 
oughly versed  in  the  written  and  unwritten  laws,  and 
familiar  with  many  languages""^  and  with  the  sciences 
of  the  times. ^*     He  is  required  to  be  affable,^  of  good 

there  may  be  judges ;  but  where  there  are  no  officers,  there  can 
be  no  judges  "  (Sifre  II,  §  144.     Cf.  supra  n.  3). 

'■«»  Kidd.  76*;  Sanh.  32^;  Xidda  94b.— Plutarch  (Life  of  Komu- 
lus)  states  that  the  members  of  the  lioman  Senate  were  styled 
patricians^  because  the}'  had  fathers  to  show  ! — Before  the  Athe- 
nian Archons  were  permitted  to  enter  on  the  discharge  of  their 
offices,  they  were  subjected  to  a  twofold  examination  :  one  in 
the  senate,  and  another  in  the  Ileliastae.  Among  the  points  of 
examination  were  :  whether  their  ancestors  for  three  generations 
liad  been  Athenian  citizens ;  whether  the}'  had  competent  estate;^ ; 
and  whether  they  were  free  from  bodily  defects  (Fiske  III,  §  101). 
Among  the  Kabbis,  while  poverty  was  no  particular  recom- 
mendation to  office,  it  was  not  a  bar  thereto  (cf.  infra  n.  235). 

^■*  The  courts  were  not  allowed  to  avail  themselves  of  the  ser- 
vices of  an  interpreter,  lest  he  mislead  them  by  misinterpreta- 
tion ;  wherefore  the  judges  were  required  to  understand  the  lan- 
guage of  the  litigants,  so  that  they  could  personally  hold  con- 
verse with  them  (Sanh.  17*;  MaccothG".  Cf.  infra  n.  288).  How- 
evei",  when  the  judges  understood  the  language  of  the  parties 
before  them  well,  but  were  not  able  to  converse  fluently  in  that 
language,  they  could  employ  an  interpreter  to  assist  them  and 
thus  facilitate  matters  (Maccoth  ib.;  Maimon.  H.  Sanh.  XXI.  8). 

*'*  Sanh.  17*;  Menahoth  65*. — ''The  Mosaic  code  has  injunc- 
tions about  the  Sabbatical  journey ;  the  distance  had  to  be  meas- 


QUALIFICATIONS.  93 

appearance,  and  not  haughty. 2°'    He  is  to  be  advanced 
in  years,  i.  e.  a  man  of  experience,  but  not  too  old,  for 


urecl  and  calculated,  and  mathematics  were  called  into  play. 
Seeds,  plants  and  animals  had  to  be  studied  in  connection  with 
the  many  precepts  regarding  them,  and  natural  history  had  to 
be  appealed  to.  Then  there  were  the  purely  hygienic  par- 
agraphs, whieh  necessitated  for  their  precision  a  knowledge 
of  all  the  medical  science  of  the  time.  The  'seasons  ■  and  the 
feasts  were  regulated  by  the  phases  of  the  moon,  and  astronomy 
— if  only  in  its  elements — had  to  be  studied.  And— as  the  com- 
monwealth successively  came  into  contact,  however  much  against 
its  will  at  first,  with  Greece  and  Rome— their  history,  geography 
and  language  came  to  be  added  as  a  matter  of  instruction  to 
those  of  Persia  and  Babylon''  (Deutsch,  '-The  Talmud*').— 
The  Roman  >cZex  was  not  necessarily  a  man  of  profound  learn- 
ing, for  although  he  alone  was  empowered  to  give  judgment,  he 
was  generally  aided  by  counsellors  (jurisconsulti)  learned  in  the 
law  (Smith  550*').  Outside  of  the  Roman  state,  disputes  were 
decided  according  to  the  usage  of  each  place,  and  pursuant  to  a 
few  simple  customs  received  by  tradition  (cf.  supra  n.  41).  In 
Beaumanoir's  time  there  were  two  difierent  ways  of  adminis- 
tering justice  :  in  some  places  they  tried  by  peers,  in  others  by 
bailiffs.  In  following  the  first  way.  the  peers  gave  judgment 
according  to  the  usage  of  their  court ;  in  the  second,  it  was  prodes 
homines,  or  old  men,  who  pointed  out  this  same  usage  to  the 
bailifi"s.  This  whole  proceeding  required  neither  learning,  ca- 
pacity, nor  study  (Montesquieu  B.  XXVIII,  c.  XLII). 

**  The  affability  required  of  the  judge  must,  however,  not  be 
confounded  with  what  is  nowadays  understood  by  "•popularity." 
The  Rabbis  severely  censure  the  sage  who  appears  to  be  too 
popular  among  his  followers;  for — say  they — the  scholar's  popu- 
larity with  the  masses  of  his  fellow-citizens  is  not  always  owing 
to  his  exalted  position  and  righteous  bearing,  but  frequently  to 
his  catering  to  their  depraved  tastes,  and  to  his  failing  to  notice 
their  vices  and  to  rebuke  them  (Keth.  IDS'"). 

*'Sanh.  17":  Menahoth  65*. 


94  THE    SYNHEDRION. 

high  age  is  frequently  accompanied  by  high  temper  ;^''^ 
and  he  must  be  the  father  of  a  family,  that  he  may 
always  be  animated  by  paternal  feelings. ^^  In  short, 
only  true  merit  entitles  one  to  the  hope  of  ever  gain- 
ing a  seat  on  the  judicial  bench.  No  personal  fear  or 
favor  should  influence  the  Synhedrion  to  elevate  to  the 
dignity  of  a  judge  one,  whose  qualifications  for  that 
office  are  not  of  the  highest  order. ^^"^    Nor  do  we  meet  in 

^  According  to  the  Rabbis,  a  person  does  not  deserve  the  title 
of  Man,  before  reaching  the  age  of  twenty-five  years  (Yalkut 
Exodus  §  167);  but  he  is  not  eligible  to  a  seat  in  the  Synhedrion 
before  he  is  forty  years  old  (Sotah  22^ ;  Tosaphoth  ib.  s.  v.  Be- 
shawin;  Ab.  Zarah  19'^),  for  then  only  can  he  be  said  to  have 
arrived  at  the  age  of  understanding  (Ahoth  V,  §  21 :  Exodus  R. 
c.  I). — Aristotle  finds  fault  with  the  circumstance  in  the  insti- 
tution of  the  Spartan  senate,  that  the  senators  were  to  continue 
in  office  for  life ;  for  as  the  mind  grows  old  with  the  body,  he 
thought  it  unreasonable  to  put  the  fortunes  of  the  citizens  into 
the  power  of  men  who,  through  age,  may  have  become  incapa- 
ble of  judging  (Government,  B.  II,  c.  VIII).  The  Talmudists 
believe,  on  the  contrary,  that  wisdom  increases  with  age  (Sab- 
bath 152«). 

2f«  Sanh.  36";  Maimon.  H.  Sanh.  II,  3.— While  the  Rabbis 
teach  that  no  mercy  may  be  shown  when  that  be  contrary  to 
justice  (cf.  Keth,.  84^),  and  fully  agree  with  the  Roman  maxim : 
Fiat  justUia  pereat  mundus  (cf.  Sanh.  6''),  they  would  not  have 
the  judge  be  hasty  in  condemning  people  (cf.  infra  n.  255). 

"'"  Sanh.  1^. — After  enumerating  the  qualifications,  it  is  scarcely 
necessary  to  catalogue  the  disqualifications.  We  shall  therefore 
simply  mention  that  royalty  disqualified  from  holding  the  office, 
because  of  the  high  station  that  forbids  opposition,  and  a  king's 
participation  in  the  deliberations  might  hamper  justice  (Sanh. 
18b).  Ttie  following  are  excluded :  the  person  whose  secular  vo- 
cation is  not  an  honorable  one,  admitting  of  suspicion  of  irregu- 
larities, because  of  his  low  character  (Sanh.  24*');  the  man  whose 


QUALIFICATIOXS.  95 

the  Talmud  with  examples  of  modern  electioneering. 
Office-hunting  is  thoroughly  repugnant  to  the  spirit 
of  Talmudic  law.^"  If  ever  any  one  obtains  his  seat 
by  unfair  means,  no  respect  is  shown  for  his  learning. 
His  judicial  robe  is  looked  upon  with  scorn, ^'^  and  no 
respectable  judge  will  associate  with  him.^^^ 

§  58.  The  disciple  endowed  with  all  these  men- 
tal  and   personal    qualifications    was   termed    Haher 

body  is  not  perfect  (Sanh.  Z%^) ;  and  in  general,  all  those  who 
are  not  competent  to  appear  as  witnesses  in  criminal  cases  (infra 
§  78),  are  ineligible  to  a  seat  in  the  Synhedrion.  The  relatives  of 
a  member  of  a  court,  connected  with  him  either  by  the  ties  of 
consanguinity  or  of  affinity,  were  disqualified  from  member- 
ship in  the  same  court  (Sanh.  27''). 

2"  Yer.  Biccurim  III,  §  3,  p.  65''. — Commenting  on  the  Scrip- 
tural saying:  "*  *  *  to  love  the  Lord  thy  God,  to  obey  his 
voice  and  to  cleave  unto  him"  (Deut.  XXX,  20),  the  Rabbis 
remark :  Xo  one  may  say,  "I  shall  devote  myself  to  the  study 
of  the  law,  that  people  may  call  me  a  sage ;  I  shall  thoroughly 
familiarize  myself  with  the  Mishnah,  that  I  may  be  called 
Rabbi ;  I  shall  acquire  a  knowledge  of  the  whole  traditional 
law,  that  I  may  be  entitled  to  a  seat  on  the  teacher's  or  judge's 
bench.  It  is,  on  the  contrar}%  the  duty  of  every  man  to  ac- 
quire knowledge  for  its  own  sake,  out  of  love  for  it :  honors 
will  come  spontaneously  (Xedarim  62».     Cf.  Sifre  II,  §  41). 

•■"2  Yer.  Biccurim  III,  §  3,  p.  65d  top. 

"3  Sanh.  23*;  Maimou.  11.  Sanh.  II,  14.— In  Rome,  in  spite 
of  the  many  penal  enactments  against  the  practice,  solicitation 
of  votes,  and  open  or  secret  influence  and  bribery  (ambitus  and 
largitiones)  were  the  universal  means  by  which  a  candidate 
secured  his  election  to  the  offices  of  state.  Even  while  the 
choice  of  candidates  was  in  the  hands  of  the  senate,  bribery 
and  corruption  influenced  the  elections  (Smith  46).  Rumor 
says  that  similar  practices  might  be  disclosed  even  under  modern 
governments ! 


96  THE   SYNHEDRION. 

(associate,  fellow) /^M)Tit  was  ineligible  to  a  seat  in 
either  Synhedrion  until  he  was  solemnly  ordained, 
when  he  received  the  honorary  title  of  Zaken  (elder) 
or  Eabbi.''' 

3.  Sessions  and  Kecruitment. 

§  59.  Originally  there  were  no  regular  court  days. 
Whenever  occasion  required  it,  the  Synhedrion  was 
convoked,  and  disjDOsed  of  the  cases  laid  before  it.^'* 
But,  as  this  not  unfrequently  occasioned  disappoint- 
ment and  hardships  to  litigants  from  the  country, 
who  came  to  the  towns  and  found  no  courts   in  ses- 

^'*  Sanh.  8b,  41%  et  al. 

^'^  Sanh.  13^ — This  ceremony  was  called  Semikhah  or  Minnuy 
{—  ordination,  promotion,  authorization),  and  was  originally 
attended  by  the  master's  imposing  his  hands  on  the  head  of  his 
chosen  disciple.  Thus  Moses  laid  his  hands  upon  his  successor, 
and  administered  the  charge  (Num.  XXVII,  18,  23).  Under 
the  Talmudic  dispensation,  though  the  term  Semikhah  (=  lean- 
ing) was  retained,  the  imposition  of  hands  was  not  an  indispensa- 
ble prerequisite  of  the  ceremony.  The  master  of  the  academy, 
assisted  by  at  least  two  colleagues,  named  the  candidate  whose 
competency  had  been  carefully  ascertained,  and  awarded  him 
the  title  of  Zaken  (Elder,  Archon,  Senator),  by  virtue  of  which 
the  invested  party  was  authorized  to  conduct  schools,  and 
became  eligible  to  membership  in  the  Synhedrion  (Sanh.  ib.). 
Subsequently  the  title  Rabbi  (Master,  Teacher,  Doctor)  came 
in  vogue  (Tosefta  Eduyoth  III  end  ;  Arukh  s.  v.  Abaye  ;  Graetz 
IV,  n.  9),  and  the  right  of  ordination  was  transferred  to  the 
Nafti  (supra  §  55),  at  least  his  confirmation  was  required  to  ren- 
der the  act  legal  and  valid  (Horayoth  10'»);  but  a  still  later  law 
provided,  that  even  the  Nasi  shall  not  have  the  right  to  ordain 
Rabbis,  unless  he  obtain  the  consent  of  tlie  Great  Sj'nhedrion 
(Yer.  Sanh.  I,  §  3,  p.  19"). 

*"^  Keth.  3».     Cf.  Tosafoth  ib.  s.  v.  Shebatay. 


SESSIONS    AND    RECRLIT.MEXT.  97 

sion, — Ezra  and  his  coadjutors  enacted  that  Mondays 
and  Thursdays  should  he  regular  court-days. ^^^ 

§  60.  The  official  hours  for  holding  court  were 
between  the  morning  service  and  noon  ;^^'*  but  a  suit 
entered  upon  during  the  legal  hours  could  be  carried 
on  till  evening,  and  civil  cases  could  be  continued 
even  after  nighfall.^^^ 

*"  B.  Kama  82a;  Maimon.  H.  Ishuth  X,  15. — This  enactment, 
however,  did  not  prohibit  the  holding  of  court  on  any  or  ever}' 
day  of  tlie  week  at  places  where  such  was  deemed  necessary. 
It  only  established  the  compulsory  and  uniform  holding  of 
court  every  where  on  those  da3s  (cf.  Keth.  3^;  Yer.  ib.  I,  §  1, 
p.  2-1''.)  The  reason  assigned  for  the  selection  of  these  days 
is  that  on  these  days  the  people  from  the  country  generally 
congregated  in  the  more  populous  places,  possessed  of  houses 
of  worship,  there  to  hear  the  public  reading  and  interpreta- 
tation  of  the  law,  and,  once  being  in  the  city,  they  could  attend 
to  their  business  at  court  (B.  Kama  1.  c). — The  reader  may 
here  be  reminded  of  a  similar  institution  in  Rome — the  nun- 
dinae.  These  were  originally  market  days  for  the  country 
folk,  on  which  they  came  to  Rome  to  sell  the  produce  of  their 
labor,  and  at  the  same  time  attended  to  their  law  suits  before 
the  King,  thus  rendering  the  "  ninth  day"  a  partial  business  day ; 
and  as  the  patricians  gradually  accustomed  themselves  to  do 
likewise,  the  nundinae  finally  became  regular  dies  fasti  (Smith 
667.     Cf  infra  n.  250). 

^'-^  Sabbath  10".— By  the  laws  of  the  Decemvirs  (Table  I,  Laws 
VIII-X),  it  was  provided  that  the  prretor  shall  "hear  causes 
from  sun-rising  till  noon,"  and  give  judgment  in  the  afternoon. 
No  judgment  could  be  given  after  sunset  (Cooper's  Justinian, 
p.  590).  In  England,  the  horce  judicice,  or  the  hours  during  which 
the  courts  were  open  for  the  transaction  of  legal  business,  were, 
in  Fortescue's  time,  from  8  to  11  A.  M.  (Bouvier,  Diet.). 

«"  Sanh.  32».— The  Courts  of  Greece  usually  held  their  sessions 
at  night  and  in  the  dark.     Thus  the  Areopagus,  though  it  several 


98  THE    SYNHEDKION. 

§  61.  In  all  cities  and  towns  the  Court  held  its 
sessions  in  the  most  public  place,  the  city  gate;''**  but 
the  two  Synhedrions  of  Jerusalem  held  their  sessions 
at  the  entrance  to  the  Temple-mound  and  to  the 
women's  department  respectively. ^^^ 

§  62.  The  Great  Synhedrion  held  daily  sessions, 
from  morning  to  evening. ^^-  For  a  long  time  this 
national  council  had  for  its  meeting  place  an  apart- 
ment in  the  national  temple  at  Jerusalem,  known 
as  the  Lishkhath  liaggazith  (hall  of  hewn  stones),^ 
whence  it  removed,  in  consequence  of  Roman  inter- 
ference, about  the  beginning  of  this  era  to  Beth- 
any,^^*  and  thence  to  various  other  places.  ^^     From 

times  changed  the  number  of  its  meetings — at  first  it  met  on  the 
last  three  days  of  the  month  only,  then  more  frequently,  and 
finally  every  day, — it  never  changed  the  time  of  its  meeting 
(Fiskelll,  §108  5  Smith  89»). 

2-*'  Cf.  Deut.  XVI,  18 ;  Sifre  II,  §  149,  et  ah— The  Romans 
and  Greeks  generally  administered  justice  in  the  open  air. 
Viewing  crimes,  especially  murder,  more  as  ceremonial  jJoUu- 
tions  than  as  political  offenses,  to  avoid  the  contamination 
which  the  judges  might  incur  by  being  under  the  same  roof 
with  the  criminal,  their  places  of  trial  were  open  to  the  sky 
(Fiske  III,  §  108  ;  Smith  89"). 

•^'  Sanh.  86b;  Maimon.  H.  Sanh.  I,  3. 

"^  Tosefta  Sanh.  VII,  §  1 ;  Sanh.  88".— This  Court  was  not 
obliged  to  have  all  its  members  present  at  the  sessions.  Twen- 
ty-three members  thereof,  i.  e.  as  many  as  constituted  a  Lesser 
Synhedrion,  were  considered  a  legal  quorum  for  the  transaction 
of  its  business  (Tosefta  ib.;  Sanh.  37"*). 

^  Tosefta  Sanh.  VII,  §  1 ;  Sanh.  88^  et  al. 

^  Sanh.  4P;  Yer.  ib.  VII,  §  2,  p.  24b;  Ab.  Zara  8";  etal.— lu 
rigid  adherence  to  the  Scriptural  dictum:  "Thou  shalt  do  ac- 
cording to  the  tenor  of  the  sentence,  which  they  may  point  out  to 


SESSIONS    AND    RECRUITMENT.  99 

these  places  it  asserted  its  authority  over  all  the 
Israelites,  and  to  those  places  all  appeals  from  the 
lower  courts  were  directed.  The  judgment  emanat- 
ing from- it  was  irrevocable.^^ 

thee  from  the  place  which  the  Lord  shall  choose'"  (Deut.  XVII,  10), 
the  Rabbis  argiied  that  only  as  long  as  the  great  national  coun- 
cil occupies  the  spot  chosen  by  God, — a  locality  connected  with 
the  great  temple, — and  thence  watches  over  the  administration 
of  the  laws,  the  courts  not  only  have  a  right,  but  are  bound  to  try 
capital  cases  and  inflict  capital  punishment ;  but  when  this  august 
tribunal  is  not  domiciled  at  the  sacred  place,  and  cannot  send 
forth  its  verdicts  from  there,  no  capital  cases  can  be  tried  by  the 
Jewish  law  (Ab.  Zara  1.  c).  Accordingly,  when  Rome  began  se- 
riously to  interfere  with  the  administration  of  justice  in  Pales- 
tine, and  Coponius,  the  Roman  procurator  was  invested  with  the 
powre  to  decide  over  life  and  death  (.John  XVIII,  31 ;  Josephus 
II  Wars,  VII,  1;  Graetz  III,  n.  25),  the  Jewish  supreme  tribunal 
found  itself  unable  to  continue  to  administer  justice,  in  accord- 
ance with  the  laws  of  Moses  and  its  own  interpretation ;  it 
therefore  removed  from  the  consecrated  spot,  thereby  divest- 
ing itself  and  the  subordinate  courts  of  the  duty  of  acting  on 
capital  cases.  During  the  revolutionary  period,  however  (07-70 
C.  E.),  the  Great  Synhedrion  returned  to  its  original  place,  and, 
as  far  as  possible,  administered  its  offices  (Graetz  1.  c). 

225  Rosh  Ilashanah  Sl^sq.;  Maimon.  H.  Sanh.  XIV,  12.— It 
is  only  the  yw.?  gladii  that  the  Talmud  considers  inseparable  from 
the  temple,  for  other  purposes  the  place  is  immaterial ;  and  the 
Great  Synhedrion,  though  moving  from  place  to  place,  con- 
tinued to  be  the  legislative  body  of  the  Jews  for  several  centu- 
ries after  the  total  destruction  of  the  temple  (Sifre  II,  §  153 ; 
Berakhoth  58*^;  Sanh.  14^;  Yer.  ib.  XI,  §  4,  p.  30«),  and  to  ordain 
teachers  and  judges.  Even  when  the  Romans  prohibited  the 
ordination  of  disciples,  proclaiming  death  and  destruction  to 
the  persons  by  whom,  and  the  congregation  and  city  where,  the 
solemn  act  was  carried  out,  the  religious  leaders  in  Israel  did 
not  neglect  to  confer  the  authorization  in  due  form  on  their 


100  THE   SYNHEDRIOX. 

§  63.   The  seats  of  the  8ynliedrion  were  ranged  in 
a  semi-circle, — the  president  occupying  the    middle 

worthy  disciples,  so  as  to  presers'e  an  unbroken  chain  of  regu- 
larly ordained  Rabbis.  Thus  it  is  related  of  R.  Judah  ben  Baba 
(137  C.  E.).  Fearing  that,  through  the  slaughter  of  Rabbis  by 
Rufus,  there  might  be  left  no  ordained  sages  to  teach  and  guide 
future  generations,  unless  the  surviving  disciples  be  at  once 
ordained,  he  performed  the  ceremony  on  several  of  the  fore- 
most disciples  of  R.  Akiba,  in  spite  of  the  dire  punishment 
threatened  by  Roman  tyranny.  However,  he  involved  no  city 
or  congregation  in  his  violation  of  the  Roman  edict ;  for  he 
conducted  the  ceremony  outside  of  city  limits.  He  himself 
lost  his  life  for  his  act  of  piety.  He  was  surprised  by  some 
Romans  in  the  very  act,  and  three  hundi'ed  Roman  lances  per- 
forated his  body  !  The  just  ordained  Rabbis  escaped  (Sanh.  1.  c). 
'^  Tosefta  Sanh.  VII,  §  1 ;  Sifrell,  §  152;  Sanh.  88»>.— Appeals 
were  carried  in  the  following  manner :  A  deputy  of  the  Court 
of  Three,  when  that  court  had  jurisdiction  in  the  matter  (cf. 
supra  §  52).  applied  for  a  decision  on  the  mooted  question  to 
the  nearest  local  Synhedrion.  When  the  decision  of  that  Syn- 
hedrion  proved  satisfactory,  the  matter  ended  there;  other- 
wise, or  when  the  question  originated  in  a  local  Synhedrion,  a 
deputy  from  that  body  presented  it  to  the  Synhedrion  sitting 
at  the  foot  of  the  Temple-mound  (§  53) ;  if  no  satisfactory  con- 
clusion was  reached  there,  the  question  was  in  the  same  manner 
laid  before  the  Synhedrion  sitting  at  the  women's  department 
(ib.) ;  and  if  there  Avas  still  no  satisfactor}'  decision,  the  ques- 
tion was  carried  to  the  court  of  last  resort,  the  Great  Synhe- 
drion. A  deviation  from  the  decision  thus  obtained  from  that 
august  body,  subjected  the  recalcitrant  judge  or  teacher  to  crim- 
inal prosecution  and  death  (Sifre  1.  c.  sq.;  Sanh.  86^  Cf.  infra 
n.  255). — Among  the  Greeks,  owing  to  the  heterogenous  char- 
acters of  their  ditterent  courts,  "there  was  little  opportunity  for 
bringing  appeals,  properly  so-called  "  (Smith  72''  sq.).  Among 
the  Romans,  appeals  were  common,  "on  account  of  the  injus- 
tice or  ignorance  of  those  who  had  to  decide'"  (ib.  74*.     Cf. 


SESSIo^^s  and  heckuitment.  101 

seat, — so  that  all  the  members  could  see  each  other 
at  a  glance.  Facing  them  were  three  rows  of  seats 
occupied  by  probationers.^^ 

§  64.  All  ordained  disciples  were  eligible  to  mem- 
bership in  the  different  courts;  but  that  no  inexpe- 
rienced sage  might  ever  occupy  a  seat  on  the  hij^hest 
bench,  the  G-reat  Synhedrion  appointed  the  newly 
ordained  disciple  to  a  seat  in  the  Court  of  Three;  after 
a  time,  he  was  promoted  to  tlie  local  Synhedrion ;  thence 
to  the  first,  and  later  on  to  the  second  Synhedrion  at 
Jerusalem,  and  finally  to  the  Grreat  Synhedrion  itself. ^^^ 
And  as  there  always  were  more  candidates  than  vacan- 
cies, supernumeraries,  to  three  times  the  number  of 
members  in  the  regular  Synhedrions,  were  enlisted  as 
probationers  {apprenticii  ad  legem).  Whenever  occa- 
sion required  it,  the  probationer  occupying  the  seat 
nearest  the  last  of  the  judges,  was  promoted  to  a  seat 
on  the   bench.     The  vacancy  thus  created  by  his  re- 


supra  n.  205). — Under  the  feudal  .system,  an  appeal  from  the 
judgment  of  the  court  below  could  be  carried  to  the  suzerain, 
and  had  to  be  decided  by  combat.  The  appellant  wa.s  obliged 
to  fight  successively  every  one  of  the  members  of  the  court, 
and,  unless  he  vanquished  them  all  within  the  day.  his  life,  if 
he  preserved  it  against  so  many  hazards,  was  forfeited  to  the 
law.  If  fortune  or  miracle  made  him  conqueror  in  every  con- 
test, the  judges  were  equally  subject  to  death,  and  their  court 
forfeited  its  existence  (Hallam  c.  II,  P.  II), 

*"  Sanh,  36'';  Maimou.  If.  Sanh.  I,  3, — Ancient  courts  gen- 
erally presented  the  form  of  a  circle  (Fiske  III,  §  36). 

•^'  Tosefta  Shekaliu,  end  ;  Tosefta  Sanh,  VII,  §  1 ;  Sanh,  88",— 
In  Rome,  the  Lex  Calpurina  (149  B,  C,  E,)  established  an  Album 
Judicum.  The  list  contained,  it  is  said,  350  names  gathered 
from  among  the  tribes,  and  out  of  that  body  the  judices  were 
chosen  (Smith  252''), 


102  THE    SYNHEDRION. 

moval,  was  filled  by  his  immediate  neighbor,  who 
again  was  succeeded  by  his  nearest  neighbor,  and  so 
on  till  the  last  one  made  room  for  the  admission  of  a 
new  probationer.^^" 

4.   Honorarium. 

§  65.  The  secretaries  and  servitors  of  the  several 
courts  were  paid  for  their  services,  but  the  judge  who 
adjourned  causes  from  day  to  day,  or  from  place  to 
place,  thereby  increasing  the  labors  of  these  officers 
and  raising  their  emoluments,  was  himself  considered 
mercenary.  ^^ 

§  06.  The  judges  themselves,  on  the  other  hand, 
were  originally  not  paid  at  all.  The  offices  of  teacher 
and  judge  in  Israel  were  offices  of  trust,  not  of  emol- 
ument; they  were  truly  offices  of  honor,  not  of  lucre 
and  gain.^^^     The  regular  court  days  the  judge  spent 


^  Sanh,  Se*'. — Under  certain  circumstances,  as  when  the  pro- 
bationer showed  liimself  particularly  apt,  saving  the  life  of  an 
accused  by  his  sagacious  and  profound  argument  at  the  trial 
(cf.  infra  §  102,  n.  331),  he  was  promoted  to  the  bench  even 
before  the  arrival  of  his  turn. 

^>  Sabbath  56'';  Maimon.  II.  Sanh.  XVII,  3. 

231  Nedarim  37";  Bekhoroth  29»,— Referring  to  Deut.  IV,  5, 
where  Moses  says:  "Behold,  I  have  taught  you  statutes  and 
judgments  as  the  Lord  my  God  commanded  me,"  the  Talmud 
argues  that,  as  iSIoses  taught  his  followers  gratuitously,  so  must 
every  Israelite  teach  gratuitously ;  as  he  sat  in  judgment  with- 
out the  expectation  of  material  reward,  but  for  the  sake  of 
duty,  so  must  every  judge  act  for  the  sake  of  justice  only 
(Xedarim  and  Bekhoroth  ib.).  The  duty  of  imparting  instmc- 
tjon  in  the  law  was  considered  by  the  Rabbis  so  .sicred,  that 


HONORARIUM.  103 

on  the  bench,  without  expectation  of  any  reward  for 
his  services;  the  rest  of  the  week  he  employed  in  earn- 
ing a  livelihood. ^^  If  his  services  were  required  on 
the  days  when  he  was  engaged  in  his  private  pur- 
suits, he  had  the  right  either  to  claim  a  substitute  to 
attend  to  his  work  during  the  time  to  be  occupied  by 
the  suit,  or  to  demand  adequate  remuneration  for  the 
loss  of  time.  But  even  this  right  was  not  fancied  by 
the  Rabbis,  except  when  the  party  devoted  all  his 
time  to  the  bench.  Then  he  vfas  either  supported 
from  the  communal  treasury,^'  or  permitted  to  accept 

they  said:  Whosoever  refrains  from  communicating  a  know- 
ledge thereof  to  a  disciple,  is  cursed  even  by  the  embryo  in  the 
mother's  body  (Sanh.  91^),  and  their  anxiety  to  teach,  they 
compared  to  the  eagerness  of  the  mother  to  suckle  her  young 
ones,  which  is  even  greater  than  that  of  the  latter  to  drink 
(Pesahim  112a). — In  Carthage,  the  Council  of  Five  which  was 
the  Superior  court  of  that  countr}-,  received  no  salary,  "the 
single  motive  of  the  public  good  being  thought  a  tie  surHcient 
to  engage  honest  men  to  a  conscientious  and  faithful  discharge 
of  their  duties'"  (Rollin  1.  c,  B.  II,  P.  I.  §  3).  The  same 
seems  originally  to  have  been  the  case  with  the  Roman  judges, 
for  among  the  salaried  offices  (cf.  Fiske  III,  §  267,  5;  Smith 
849)  that  of  the  judge  is  not  mentioned ;  but  the  Athenian  Di- 
castai  were  usually  paid  three  oholi  (=about  ten  cents)  a  day 
(Fiske  III,  §  110,  2). 

■■^*  Some  of  the  leading  Rabbis  were  dependent  on  their  respec- 
tive handicrafts  for  a  living.  There  were  among  them  carpen- 
ters and  smiths,  millers  and  bakers,  tailors  and  sandalmakers, 
wood-cutters  and  stone-masons,  physicians,  surgeons,  perfu- 
mers, and  all  other  kinds  of  craftsmen. 

^  Kethuboth  105^ — While  it  is  not  the  aim  of  these  pages  to 
expose  the  abuses  of  our  magistracy,  we  cannot  refrain  from 
suggesting  that  it  were  indeed  a  blessing  had  we  magistrates 
discharging  their  functions,  if  not  altogether  for  the  sake  of 


104  THE    SYNIIEDRION. 

fees  from  the  litigants.^     In  general,  however,  the 


duty,  at  least  not  solely  for  the  sake  of  the  "legal  tees."  As 
matters  stand,  the  magistrate  is  paid  according  to  the  number 
of  cases  he  "sends  up,"  or  of  the  persons  he  convicts;  the  law 
thus  oft'ers  him  an  incentive  to  seek  convictions.  It  is  true. 
'•  the  law  does  not  suppose  a  possibility  of  bias  or  favor  in  one 
who  is  sworn  to  administer  impartial  justice"  (Blackstone  III. 
361);  but  the  law-makers  ought  to  remember  the  fact,  so  well 
described  by  the  "  Chinese  Philosopher,"  that  "a  mercenary 
magistrate  who  is  rewarded  in  proportion,  not  to  his  integrity, 
but  to  the  number  of  convicts,  must  be  a  person  of  unblemished 
character,  or  he  will  lean  on  the  side  of  cruelty ;  and  when 
once  the  work  of  injustice  is  begun,  it  is  impossible  to  tell 
how  far  it  will  proceed.  It  is  said  of  the  hyena  that  naturally 
it  is  in  no  way  ravenous,  but  when  once  it  has  tasted  human 
tiesh,  it  becomes  the  most  voracious  animal  of  the  forest,  and 
continues  to  persecute  mankind  ever  after.  A  corrupt  magis- 
trate may  be  called  a  human  h3'ena"  (Goldsmith,  Cit.  of  the 
World  LXXX).  Were  the  incentive  removed,  not  only  would 
the  public  be  relieved  of  the  annoyance  of  constantly  being 
followed  by  the  ever-watchful  eye  of  the  inevitable  detective 
or  "runner"  who,  under  the  guise  of  law,  pries  into  every- 
body's private  affairs,  but  actual  justice  would  gain  in  respect. 
Sycophancy,  in  all  its  hideous  forms,  would  be  banished  from 
the  land,  and  no  "  case  "  would  be  made  out  "  for  costs  "  against 
innocent  parties,  simply  because  they  are  better  able  to  pay  than 
the  guilty  ones — at  least,  the  real  incentive  to  extortion  and  to 
injustice  being  removed,  there  would  be  no  reason  for  suspecting 
a  Jnstice  of  the  Peace  of  any  sordid  motives  in  indicting  and 
convicting  people  whom  the  public  considers  guiltless. — Talmu- 
dic  jurisprudence  is  exceedingly  careful  in  such  matters.  It 
disqualifies  the  judge  from  acting  on  a  cause  in  which  he  is  ever 
so  remotely  interested  (cf.  B.  Bathra  43*;  Mairaon.  H.  Eduth 
XV,  1  sq). 

•»»  Keth.  105»;  Maimon,  II.  Sanh.  XXIII,  5.— While  the  Tal- 
mud does  not  specify  the  amount  of  these  fees,  it  forbids  taking 
more  from  one  than  from  another.     All  parties  to  a  cause  had 


HONORARIUM,  105 

Kabbis  discountenanced  the  appointment  of  judges  who 
were  not  fully  competent  ta  support  themselves. ^^ 

§  67.  As  for  giving-  or  receiving  bribes, — this  was 
80  strictly  forbidden  and  thoroughly  detested,  that 
even  the  manifestation  of  unusual  kindness  or  respect 
on  the  part  of  a  client  towards  the  judge  was  looked 
upon  as  a  kind  of  bribery,  and  the  recipient  of  the 
attentions  was  disqualified  from  participating  in  a  suit 
to  which  he  who  bestowed  them  was  a  party.  ^ 

to  contribute  equal  sums  towards  the  maintenance  of  the  judi- 
ciary (ib.).  But  when  it  was  discovered  that  tlie  judge  had 
been  compensated,  uot  for  his  time,  but  for  his  opinion^  thougli 
that  opinion  was  fully  borne  out  by  law  and  equity,  it  was  in- 
validated by  that  act,  for  this,  was  considered  tantamount  to 
bribery  (Bekhoroth  29-»;  Maimon.  1.  c). 

a*  Mekhilta  Amalek  §  2;  Kethub,  lOJ"^;  Sanh.  7''.— They  inter- 
pret the  Salomonic  aphorism  :  "The  King  by  judgment  estab- 
lishes the  land,  but  the  man  tliat  receiveth  gifts  overthroweth 
it"  (Prov.  XXIX,  4),  as  meaning:  when  the  person  sitting  in 
judgment  is,  like  a  King,  well  provided  for,  he  will  establish 
the  land  [on  justice.  Cf.  Aboth  I,  18.];  but  when,  like  the 
priests,  he  relies  for  his  subsistence  on  gifts,  he  will  overthrow 
it;  for  the  standard  of  justice  will  be  dega^aded  in  the  eyes  of 
the  people.  For  the  same  reason  the  Talmud  would  have 
judges  who  are  not  compelled  to  expose  their  privations  to  the 
eyes  of  the  masses,  but  who  live  comfortably  and  respectably 
(cf.  Keth.  ib.;  Yer.  Sanh.  II,  §8,  p.  20<:  bot.). 

"^  Keth.  105";  Sanh.  71^.— Evidently  it  was  the  aim  of  the  Tal- 
mudists  to  maintain  the  judicial  courts  pure  and  healthy,  where- 
fore they  erected  almost  insuperable  barriers  around  them,  so 
that  not  a  single  foul  breath  might  reach  them.  The  Talmud 
records  many  instances  showing  how  far  removed  its  votaries 
kept  themselves  from  any  and  every  act  that  bore  even  the 
least  .semblance  to,  and  therefore  might  provoke  suspicion  of 
briber V.     E.  g.,  a  Rabbi  wns  crossins  a  river,  and,  as  his  boat 


106  '  THE    SYNHEDRION. 

nearecl  the  shore,  a  stranger  very  considerately  assisted  him  to  a 
safe  landing.  Soon  thereafter,  the  same  stranger  appeared  before 
the  Kabbi's  tribunal  as  a  litigant,  whereupon  the  Kabbi  declined 
to  sit  in  judgment  on  the  case,  remarking :  Friend,  I  must  not 
be  your  judge,  for  I  am  under  some  obligations  to  you. — Another 
merely  had  his  garment  brushed  by  a  would-be  client  before 
his  tribunal;  and  he  likewise  declared  himself  disqualified  from 
acting  on  the  case.  In  short,  it  is  a  principle  of  Talmudic  juris- 
prudence to  sit  in  judgment  neither  on  friends  nor  on  enemies :  not 
on  the  former,  lest  the  judge  be  blinded  by  friendship,  and  fail  to 
perceive  guilt;  not  on  the  latter,  lest  he  be  carried  away  by  anti- 
pathy, and  fail  to  perceive  extenuating  circumstances  (Keth. 
ib.).  And  when  one  considers  the  frailties  of  human  nature, 
he  can  scarcely  find  it  strange  that  truly  conscientious  people 
of  every  age  are  inclined  to  erect  such  barriers  around  justice. 
How  much  perversion  of  justice  has  contributed  towards  the 
fall  of  the  mightiest  of  ancient  empires,  no  reader  of  history 
needs  be  told.  Nor  need  it  be  stated  how  old  England  groaned 
under  similar  circumstances.  The  fact  that  a  long-suffering 
people  rises  in  arms  and  compels  its  sovereign  to  sign  a  docu- 
ment binding  himself  to  "sell  to  no  man,  not  to  deny  or  delay 
to  any  man  justice  or  right,"  shows  to  what  straits  the  people 
must  have  been  brought,  no  less  than  it  "stamps  with  infamy 
that  government  under  which  it  had  become  necessary"  (Hal- 
lam  c.  VIII,  P.  II).  And  when  we  come  down  several  centu- 
ries, we  find  that  even  so  great  a  man  as  Bacon  could  not  rise 
superior  to  temptations.  "Under  his  own  signature,  owned 
by  himself  to  be  '  his  act,  his  hand,  his  heart,'  he  pleads  guilty 
to  three-and-twenty  instances  of  bribery  and  official  corrup- 
tion"  (Potter,  Introd.  to  Bacon  and  Locke,  p.  XII);  while 
Montaigne  represents  the  condition  of  the  French  judiciary  of 
his  days  as  no  better.  "What  can  be  more  outrageous" — cries 
he — "than  to  see  a  nation,  where,  by  law  and  custom,  the  office 
of  judge  is  to  be  bought  and  sold,  where  judgments  are  paid  for 
with  ready  money,  and  where  justice  may  legally  be  denied  to 
him  that  has  not  the  wherewithal  to  pay!"  (Essays  B.  I,  c. 
XXII).  And,  since  "history  repeats  itself,"  even  at  this  day  in 
our  own  country,  though  we  entertain  the  highest  respect  for  our 


HONORARIUM.  107 

judiciary,  we  cannot  but  consider  the  Talmudic  "hedge-laws"^  to 
be  as  necessary  of  enforcement,  as  they  have  ever  and  everywhere 
been.  Nor  can  one  help  considering  the  Talmudic  laws  which 
guarded  justice  so  carefully,  and  the  civil  and  canon  laws  which 
did  not  discriminate  between  judge  and  juror,  as  more  just,  be- 
cause more  in  accord  with  human  nature  and  experience,  than 
modern  law  which  holds  "that  judges  and  justices  cannot  be  chal- 
lenged, for  the  law  will  not  suppose  a  possibility  of  bias  or  favor  in 
a  judge  who  is  sworn  to  administer  impartial  justice"  (cf.  supra 
n.  233).  Unfortunately  we  cannot  in  every  instance  imitate  the 
Thebans  who  dedicated  to  judges  statues  wanting  hands,  show- 
ing that  justice  is  above  bribes,  though,  emblematic  of  the  Scrip- 
tural truth  that  "gifts  blind  the  eyes  of  the  wise"  (Exodus  XXIII. 
8),  we  might,  like  theui,  frequently  raise  statues  of  judges  with 
eyes  closed  I 


III.  THE  TRIAL. 
1.  The  Participators. 

§  68.  The  idea  of  a  regular  criminal  trial  implies 
the  presence  of:  1,  a  competent  tribunal;  2,  an  accuser 
or  prosecutor ;  3,  an  accused. 

§  69,  For  a  tribunal  to  he  fully  competent  to  try- 
criminal  cases,  Talmudic  jurisprudence  requires  not 
only  that  it  he  legally  constituted  of  the  requisite 
numher  of  duly  qualitied  persons, ^^^  hut  also  that  all 
judges  composing  that  numher  shall  he  amicahly  dis- 
posed towards  each  other. -^^  Nor  must  there  he  on 
the  judicial  hench  either  a  relation,  or  a  particular 
friend,  or  an  enemy  of  either  the  accused,^^  or  of  the 


^  Supra  §§  53-57  ;  nu.  210,  236. 

»''  Sanh.  29a ;  Maimon.  H.  Sanh.  XXIII,  7.— AVhen  the  mem- 
bers of  a  court  are  inimical  to  each  other,  personal  feelings 
might  prove  more  powerful  than  the  most  logical  reasonings  of 
their  opponents,  and  induce  them  to  carry  on  sophistical  logo- 
machies rather  than  argue  conscientiously  and  earnestly  on  the 
merits  of  the  cases  before  them. 

239  Cf.  nn.  210,  236.— Raphall  (1.  c.  II,  p.  169  sq.)  and  Jost 
(Gesch.  d.  J.  u.  s.  Sekten  I,  243)  assert  that  Simon  ben  Shettah  pre- 
sided at  the  trial  of  his  own  son.  and  that  the  sentence  of  death 
was  passed  on  the  youthful  victim  of  conspiracy  by  the  wretched 
father  himself.  We,  however,  cannot  discover  in  the  simple 
account  of  that  trial  the  least  allusion  to  Simon's  presiding 
thereat,  or  his  participation  therein,  in  contravention  of  the  ex- 
plicit ruling  of  the  old  Mishnah  (Sanh.  27''),  according  to  which 

108 


THE    PARTICIPATORS.  109 

no  one  may  sit  in  judgment  on  a  person  with  wliom  he  is  con- 
nected by  the  ties  of  blood  or  affinit3',  whether  in  the  direct  or 
lateral  line.  But  here  is  the  Rabbinic  version  of  that  afiair  : — 
Simon  ben  Shettah's  hands  were  very  warm  [i.  e.,  he  was  ex- 
ceedingly strict  in  his  endeavor  to  exterminate  crime,  as  related 
above,  n.  108,  Goaded  on  to  desperation,]  there  arose  a  band  of 
reckless  persons  who  conspired  [to  wreak  vengeance  on  their 
persecutor].  'Let  us  bear  witness  against  his  son  [i.  e.,  accuse 
him  of  a  crime — cf.  §  71]  and  kill  him,'  said  they.  They  testified 
against  him,  and  had  him  condemned  to  death.  As  he  was  taken 
away  to  be  executed,  the}'  [the  conspirators,  either  moved  by 
conscience  to  confess,  or  gloating  on  the  misery  of  their  enemy, 
and  knowing  that,  after  the  trial  had  proceeded  to  a  certain  stage 
(infra  §91,  n.  307),  no  retraction  by  a  witness  is  admissible]  said  : 
•Master,  we  have  testified  to  a  falsehood  ! '  Thereupon  the  lather 
wished  to  have  him  recalled  [before  court,  that  the  case  might  be 
reviewed];  but  Ae  said  :  'Father,  if  thou  art  indeed  anxious  to 
confer  a  benefit  on  thy  country,  render  me  the  threshold  '(to  pass 
over  me, — cmp.  D.  Eretz  Zuta  c.  I),  i.  e.,  let  me  die  as  an  illus- 
tration of  the  universality  and  immutability  of  the  law  (Yer. 
Sanh.  VI.  §  5,  23"  bot.;  Yalkut  II,  §  G88).— Is  there  in  this  plain 
statement  any  ground  for  assuming  that  Simon  presided  at  the 
trial,  contrary  to  established  law?  Simon  was  president  of  the 
great  Syuhedriou,  a  tribunal  whose  original  jurisdiction  was 
naturally  limited  to  the  most  celebrated  cases  (supra  n.  197) ; 
and  supposing  that  his  son  was  charged  with  the  deadly  sin  of 
uttering  false  prophecy. — the  only  crime  which  might  have 
brought  him  directly  before  the  supreme  national  council 
(Sanh.  2%  et  al.), — there  was  still  no  necessity  for  the  heart- 
broken father  to  sit  in  judgment  on  him,  since  one-third  of  the 
whole  number  of  members  of  that  tribunal  constituted  a  legal 
quorum  to  dispose  of  all  cases  coming  before  it  (supra  n.  222). 
Besides,  Simon  is  really  not  mentioned  in  connection  with  the 
trial.  The  onl}'  time  he  appears  on  the  scene  is  after  the  con- 
fession of  the  conspirators,  when  it  is  said  :  "His  father  wished 
to  recall  him ;  "  but  this  does  not  say  that  he  acted  in  his  official 
capacity.  He  acted  as  a  father  who.  seeing  his  son  led  forth  to 
execution  for  a  heinous  crime,  and  hearing  the  witnesses  by 


110  THE    TRIAL. 

accuser/*^  or  one  who  has  himself  witnessed  the  com- 
mission of  the  crime. ^" 

§  70.  The  only  prosecutors  known  to  Talmudic 
criminal  jurisprudence  are  the  witnesses  to  the  crime. 
Their  duty  it  is  to.  bring  the  matter  to  the  cognizance 
of  the  court,  and  to  bear  witness  against  the  crimi- 
nal.'*^ In  capital  cases,  they  are  the  legal  execution- 
ers also.^^     Of  an  official  accuser  or  prosecutor  there 

whose  testimony  that  son  had  been  convicted,  convict  them- 
selves of  conspiracy  and  falsehood,  desires  to  save  his  son  from 
an  ignominious  and  unmerited  death. 

^  Sifre  I,  §  160 ;  Sanh.  27"^ ;  Yer.  Shebuoth  IV,  §  1,  p.  35^ 
et  al.     Cf.  supra  n.  236. 

2*'  Tosefta  Maccoth  III  (II),  §  7;  Eosh  Hash.  26'»;  B.  Kama 
^O'' ;  Maccoth  12'^. — Murder  committed  by  a  diseased  person  is 
the  only  exception  to  this  rule  (supra  §  38,  n.  143). — Ccfmmon 
law  now-a-days  agrees  Avith  this  rule,  and  "if  a  Juror  knows 
anything  of  the  matter  in  issue,  he  may  be  sworn  as  a  witness, 
and  give  his  evidence  publicly  in  court"  (Blackstone  III,  375) ; 
but  anciently  the  doctrine  was  that  all  such  evidence  as  the 
jurors  had  in  their  own  conscience,  by  their  private  knowledge 
of  facts,  had  as  much  right  to  sway  their  judgment  as  any  evi- 
dence delivered  in  court.  Accordingly,  it  has  been  held  that, 
though  no  evidence  at  all  be  produced  before  court,  the  jury 
might  still  bring  in  a  verdict  of  conviction  agreeably  to  "their 
own  personal  knowledge,  without  hearing  extrinsic  evidence  or 
receiving  any  direction  from  the  judge  "  (ib.  374) ;  thus  render- 
ing the  juror  at  once  witness  and  judge, 

2«  Supra  n.  104;  infra  n.  281, 

2'^  Infra  §  121. — In  Eome  there  were  public  accusers  (the 
quaestores  parricidii  or  quaestores  rerum  capitalium)  whose  duty  it 
was  to  ferret  out  all  crimes,  and,  when  they  discovered  that  a 
capital  crime  had  been  committed,  to  prosecute  the  offender  be- 
fore the  proper  courts.  The  sentence  having  been  pronounced, 
it  devolved  upon  them  to  carry  it  into  execution.     Their  num- 


THE    PARTICIPATORS.  Ill 

is  nowhere  any  trace  in  the  laws  of  the  ancient  He- 
brews. 

§  71.  The  accused  must  be  a  person  of  legal  age  and 
of  sound  mental  and  physical  condition,  or  no  indict- 
ment can  lie  against  him.^  From  the  time  the  accu- 
sation is  lodged  against  him,  he  becomes  a  prisoner, "*^ 
but  is  not  deprived  of  other  personal  rights  and  priv- 
ileges. An  injury  inflicted  on  him  is  punishable,  as 
if  it  had  been  inflicted  on  any  other  person  ;  and  an 
injury  done  by  him  is  equally  punishable. ^^   In  short, 

ber  varied  with  time  and  circumstances ;  originally  it  was  but 
two;  afterwards  foui*,  and  then  eight;  Sylla  raised  the  number 
to  twenty,  and  Julius  Csesar  to  forty  (Fiske  III,  §  246;  Smith 
828«). 

244  Supra  §§  45-50  and  notes. 

^■»^  Mekhilta  Nezikin  §  6 ;  Sanh.  78''. — Among  the  classic  na- 
tions, the  prisons  in  which  persons  under  accusation  were  con- 
fined, served  also  as  the  place  of  execution  (Smith  213'';  394''). 
This  was  especially  the  case  in  Eome  with  the  TuUiamnn  or 
Mamerdne,  close  to  which  were  the  "steps  of  wailing"  (Scalae 
gemoniat)  down  which  the  bodies  of  those  who  had  been  exe- 
cuted, were  either  thrown  into  the  forum,  to  be  exposed  to  the 
gaze  of  the  populace,  or  dragged  with  hooks  and  cast  into  the 
Tiber  (ib.  213*';  Fiske  III,  §  264,  3).— Among  the  Hebrews,  the 
place  of  execution  was  at  some  distance  from  the  city  (infra  § 
117). 

««  Sifre  I,  §  160 ;  Tosefta  B.  Kama  IX,  §  15.— Summary  pun- 
ishment of  a  criminal  is  altogether  foreign  to  the  letter  and 
the  spirit  of  Rabbinic  law.  Though  his  guilt  is  sure  to  cause 
liis  conviction  and  execution  at  human  hands,  the  criminal  must 
nevertheless  not  be  summarily  dealt  with  (Sifre  1,  §  160  ;  Mek- 
hilta Nezikin  §  4  ;  Sanh,  85,  et  al.). — By  common  law  the  rule 
is  that  no  man  shall  be  forejudged  oi  life  or  limb ;  and  that  no 
man  shall  be  put  to  death,  without  being  brought  to  answer  by 
due  process  of  law  (Blackstone  I,  133);  therefore  deliberately, 


112  THE    TRIAL. 

until  the  accused  is  duly  tried  and  convicted,  he  is  in 
the  eyes  of  the  law  an  innocent  being. ^*^ 

2.   TixME  OF  Trial. 

§  72.  Criminal  cases  can  he  acted  upon  hy  the  vari- 
ous courts  during  day  time  only,^^^  by  the  Lesser 
Synhedrions  from  the  close  of  the  morning  service  till 
noon,"*®  and  by  the  Great  Synhedrion  till  evening.^*" 

uncompelled  and  extrajudicially  to  kill  the  greatest  malefactor, 
is  murder  (ib.  IV,  178).  Still  it  prescribes  summary  punish- 
ment in  certam  cases.  Thus,  a  person  guilty  of  contempt  com- 
mitted in  the  face  of  the  court,  may  be  instantly  imprisoned, 
even  without  examination  (ib.  IV,  286.  Cf.  supra  n.  143).  The 
Athenian  law  allowed  in  certain  cases — as  theft,  murder,  ill- 
usage  of  parents — a  summar}'  process.  The  punishment  of  these 
cases  was  generally  fixed  by  law,  and  if  the  accused  confessed, 
or  was  proved  guilty,  the  magistrate  could  execute  the  sentence 
at  once,  without  appealing  to  any  of  the  jur3^-courts  (Smith  66*. 
Cf.  infra  n.  293). 

*«  Cf.  Sifra  Kedoshim  §  4 ;  Sabbath  127^ ;  Sanh.  32b ;  Sheb.  30a. 

^  Sanh.  32a. — The  Areopagus  of  Athens  always  held  its  ses- 
sions in  the  night  and  in  the  dark  (supra  n.  219). 

2«  Supra  §  60;  n.  218. 

^0  Supra  §  62. — By  Talmudic  law  there  is,  properly  speaking, 
no  dies  nefasti,  with  reference  to  the  dispensing  of  justice.  Even 
on  the  Sabbath  the  court  might  sit  in  judgment  of  a  criminal 
cause  (Sanh.  35*).  On  civil  causes,  indeed,  the  Talmud  forbids 
all  action  during  the  Sabbath,  but  its  reason  for  the  prohibi- 
tion:  "Lest  some  writing  will  have  to  be  done"  (Beza  36''),  is 
not  applicable  to  criminal  trials  inaugurated  the  day  before,  it 
being  improbable  for  such  an  emergency  to  arise,  since  all  the 
writing  will  have  been  done  on  the  first  day  of  the  trial  (Tosa- 
foth  Sanh.  1.  c,  s.  v.  Ligmere).  That  no  court  was  held  on  the 
Sabbath  was  owing  to  the  law  prohibiting  executions  on  the 


TIME    OF    TRIAL.  113 

§  73.  Unless  urged  by  extraordinary  circum- 
stances/*' no  court  is  allowed  to  act  on  more  than  one 
criminal  case  in  one  day.^^ 

§  74.  No  trial  of  a  case  involving  capital  punish- 
ment can  be  inaugurated  on  the  eve  of  the  Sabbath 
or  of  a  festival/**  and  that  for  the  following  reason  : 
The  Rabbis  viewed  the  interval  between  the  passage 
of  the  condemnatory  sentence  and  its  execution  as 
the  most  painful  time  for  the  convict  ;  therefore,  in 
order  to  save  him  all  unnecessary  suspense,  they 
decreed  that  the  execution  should  follow  close  upon 
the  verdict.^*  But  another  humanitarian  law  pro- 
Sabbath  (Sifre  II,  §  221 ;  Mekhilta  Wayakhel  §  1 ;  Sanh.  35a) 
or  after  sunset  (Sanh.  1.  c. ;  Yer.  ib.  IV  §  7,  p.  22^).  In  Kome, 
for  the  purpose  of  the  administration  of  justice,  the  calendar 
marked  distinctly  the  days  (diea  fafiti)  on  which  the  praetor  could 
hold  court  at  any  hour,  and  the  days  {dies  inierdssi)  on  which 
judicial  business  could  be  transacted  at  certain  hours  only,  and 
the  days  (dies  nefasti)  on  which  no  courts  were  allowed  to  be 
held  (Fiske  III  §  229 ;  Smith  362.  Cf.  supra  n,  217). 

^'  E.  g,,  those  mentioned  supra  §  9.  ' 

^^  Sifre  II  §  221 ;  Sanh.  46a.— This  rule  not  only  precludes  the 
trial  on  one  day  of  two  entirely  different  cases,  but  even  cases 
of  the  same  category  (§  30),  but  subject  to  different  penalties — 
e.  q.  adultery  with  a  priest's  daughter,  where  the  adulteress  is  pun- 
ished with  burning  (§  27).  while  the  adulterer's  penalty  is  stran- 
gulation (§  29,  n.  97) — must  be  tried  separately  and  on  different 
days. 

*«  Sanh.  32a ;  Maimon.  H.  Sanh.  XI,  2. 

^Sanh.  35^;  Maimon.  H.  Sanh.  XII,  4.— Most  ancient 
nations  executed  their  criminals  soon  after  conviction  (Fiske 
III  §  108).  Blackstone  (IV,  404)  very  warmly  advocates  early 
executions,  but  for  utilitarian  rather  than  humanitarian  reasons. 
He  argues:  "It  has  been  well  observed  that  it  is  of  great  import- 
ance that  the  punishment  should  follow  the  crime  as  early  as 
8 


114  THE    TRIAL. 

hibits  the  pronouncing  of  a  verdict  of  guilty,  on 
the  day  the  first  judiciary  vote  is  taken. ^  If  now 
a  criminal  case  is  opened  on  the  eve  of  the  Sabbath 
or  of  a  festival,  and  it  appears  on  the  first  vote,  that 
it  must  result  in  conviction,  the  verdict,  according  to 

possible ;  that  the  prospect  of  gratification  or  advantage,  which 
tempts  a  man  to  commit  a  crime,  should  instantly  awake  the 
attendant  idea  of  punishment.  Delay  of  execution  seems  only 
to  separate  these  ideas,  and  then  the  execution  itself  affects  the 
minds  of  the  spectators  rather  as  a  terrible  sight  than  as  the 
necessary  consequence  of  transgression"  (cf.  supra  n.  18;  infra 
§  116,  n.  362). 

2--  Sanh.  32'' ;  Maimon.  H.  Sanh.  XII,  3.  Cf.  infra  §  100,  n. 
326. — A  very  ancient  Eabbinic-legal  maxim  says :  "Be  slow  in 
judging"  (Aboth  1  §  1).  This  the  judiciary  applied  to  all  its 
proceedings,  but  never  more  scrupulously  than  when  the  life  or 
liberty  of  a  human  being  was  involved.  Here  it  was  ordained 
that  the  announcement  of  a  verdict  of  guilty  be  postponed  to 
the  day  following  its  finding,  in  the  hope  of  discovering  in  the 
evidence,  or  somewhere  else,  a  flaw  that  might  turn  the  scale  of 
justice  in  favor  of  the  accused  (Sanh.  17*,  et  al.  Cf.  infra  §  100,  n. 
326).  To  this  rule  there  was  an  exception,  and  one  only,  which 
deserves  a  passing  notice.  It  is  the  case  of  maladministration. 
The  Zaken  Mamre  (Rebellious  Elder),  as  the  Talmud  styles  him, 
is  a  regularly  ordained  teacher,  or  judge  who  presumptuously 
utters  precepts,  or  renders  decisions,  contrary  to  the  law  as  inter- 
preted by  the  supreme  authorities  (supra  §  54,  n.  226).  For 
the  first  oftense,  having  been  duly  tried  and  legally  convicted  by 
the  several  courts,  he  was  reproved,  and  reprieved  during  good 
behavior ;  but  for  the  second  oflense,  if  found  guilty  by  the 
local  Synhedrion  only,  he  was  sent  up  to  Jerusalem.  There  he 
was  detained  till  the  advent  of  a  high  festival  (cf.  Deut.  XVI, 
16)  convoked  thither  great  masses  of  the  people  from  the  coun- 
try, and  then  only  was  he  pviblicly  put  to  death  (Sanh.  86^  89*; 
Maimon.  H.  Mamrim  III,  8.     cL  Tosefta  Sanh.  XI  §  7). 


WITNESSES.  115 

the  first  mentioned  law,  would  have  to  be  postponed 
till  the  following  day,  a  Sabbath  or  a  festival  ;  and  as 
these  are  days  on  which  no  execution  may  take 
place, ^  the  unfortunate  culprit  would  have  to  be  kept 
in  painful  suspense,  death  staring  him  in  the  face, 
for  an  unnecessarily  long  time.^^ 

3.  Witnesses. 

§  75.  To  convict  a  person  of  a  crime,  Talmudic 
jurisprudence  requires  convincing  proof  of  his  guilt, ^^ 
which  must  be  furnished  by  at  least  two  competent 
witnesses.  ^^ 

§  76.  To  be  a  competent  witness  the  party  must  be, 
like  the  modern  juror,^  {liber  et  legalis  homo)  a  free 
and  legal  person. ^^^ 

•^  Mekhilta  Wayakhel  §  1 ;  Yer.  Sabbath  VTI,  §  2,  p.  9" ; 
Sanh.  35*. 

»7  Sanh.  Z^^ ;  Maimon  H.  Sanh.  XI,  2. 

•^*-  Mekhilta  Xezikin  §  4;  Sifre  I  §  161;  Sanh.  80*>.  Cf .  Sotah  2". 

2^9  Sifre  II  §  148 ;  Kethuboth  87''. — Common  law  requires  two 
witnesses  in  cases  of  treason  only  ;  in  almost  every  other  cause 
one  positive  witness  is  sufficient  (Blackstone  IV,  357).  But 
reason  requires  two  witnesses,  since  a  witness  who  asserts  and 
an  accused  who  denies  counterbalance  each  other,  and  it  requires 
the  testimony  of  a  third  party  to  make  a  decision  possible 
(Beccaria  §  13).  Montesquieu  (B.  XII  c.  Ill)  is  rightly  of  the 
opinion  that  '"those  laws  which  condemn  a  man  to  death  on 
the  deposition  of  a  single  witness,  are  fatal  to  liberty."  By 
Talmudic  criminal  law,  one  witness  is  not  only  incompetent  to 
convict  a  person  of  an  alleged  crime,  but  is  also  considered  a 
slanderer,  and  liable  to  the  punishment  of  the  slanderer  (cf. 
Pesahim  US'' ;  supra  n.  62). 

*^'  Their  qualifications  are  accordingly  almost  identical  with 
those  of  the  judge  (Sanh.  34^;  Nidda  49''). — Xo  legally  qualified 


116  THE    TRIAL. 

§  77.   Therefore,  the  following  persons  are  incompe- 
tent  to   be  witnesses  :  Women,^^  slaves/^  minors,^ 

person  is  exempt  from  the  duty  of  bearing  witness  when  called 
upon  to  do  so,  except  a  king  of  a  dynasty  other  than  that  of 
David  (Sanh.  18%  19,;  Shebuoth  SI''.  Cf.  supra  n,  107).  When 
the  high  priest  appears  as  awitne.ss,  the  king  occupies  a  seat  on 
the  judges'  bench  (Sanh.  IS**). 

»*'  Sifre  II  §  190 ;  B.  Kama  88^ ;  Sanh.  27" ;  Shebuoth  30». 

*-  Shebuoth  30'' ;  Maimon.  H.  Eduth  IX.  2.— Al,so  among 
the  Romans,  women,  except  in  cases  of  treason  (Smith  609"  sq.). 
were  originally  excluded  from  the  witness  box ;  and  from  the 
general  policy  of  Athenian  law.  as  also  from  the  absence  of  anj- 
gxample  in  the  orators  where  a  woman's  evidence  is  produced, 
may  be  inferred  the  incapacit}'  of  women  among  the  Greeks. 
The  same  observation  applies  to  minors  (ib.  626''). 

■^  B.  Kama  88";  Maimon.  II.  Eduth  IX,  4.— Only  complete 
manumission  qualified  a  slave  for  the  witness  stand  (Guittin 
39'').  Among  the  Greeks  and  Romans  slaves  were  incompetent, 
except  when  the  torture  was  applied  (Smith  140*).  On  the 
other  hand,  when  a  Roman  slave,  of  his  own  volition,  accused 
his  master  of  any  crime,  except  treason,  he  was,  for  the  mere 
offense  of  committing  such  an  act  of  insubordination,  punished 
"by  the  sword,''  or,  in  other  words,  was  condemned  to  a  gladi- 
atorial combat  in  the  arena  (Pike,  Histor}^  of  Crime,  I,  p.  14). 
In  the  Attic  courts  of  justice,  as  a  rule,  no  freeman  could  be  put 
to  the  torture ;  and  it  was  considered  an  act  of  impiety  to  give 
up  even  an  emancipated  slave  for  such  a  purpose ;  still  we  find 
that,  on  some  extraordinary  occasions,  freemen  were  put  to  the 
torture  by  a  special  decree  of  the  people  or  of  the  senate,  as  on 
the  occasion  of  the  mutilated  Hermes  busts,  and  they  were  less 
scrupulous  about  aliens  than  about  citizens  (Smith  627"). 
Among  the  instruments  employed  for  the  torture  of  criminals 
or  of  witnesses,  were  the  wheel  and  the  rack  (ib.  989".  Cf. 
infra  n.  310). 

»*  B.  Kama  88a ;  B.  Bathra  155". — Puberty  or  adulescence 
(supra  §  49)  is  the  age  which  qualifies  a  normal  person  to  be  a 
witness  in  a  criminal  case,  though  with  reference  to  real  estate 


t 

WITNESSES.  117 

demented  persons,*^  deaf  or  mute/^^  and  blind  men;-*' 
persons   convicted    of    irreligion    or    immorality,    or 

majority  is  the  required  age  (B.  Batlira  1.  c.  Cf.  supra  n.  186, 
262).  By  common  law,  wliere  a  ca.se  depends  on  the  testimony 
of  an  infant,  it  is  usual  for  the  court  to  examine  him  as  to  his 
competency  to  take  an  oath,  previously  to  his  going  before  the 
grand  jury ;  and,  if  found  incompetent,  for  want  of  proper  in- 
struction, the  court  will,  in  its  discretion,  put  off  the  trial,  in 
order  that  the  party  may,  in  the  meantime,  receive  such  instruc- 
tion as  may  qualify  him  to  take  an  oath  (lloscoe  9o).  By  Tal- 
mudic  law,  the  person  witnessing  an  act  during  his  minority. 
cannot  bear  testimony  thereof  even  after  reaching  his  majority 
(Yer.  Meguilla  II  §  4,  p.  73''  hot. ;  Sanh.  52*^),  for  it  requires 
that  the  witness  be  as  fully  competent  at  the  occurrence  of  the 
acts  as  well  as  at  the  time  when  he  appears  before  court  in  the 
capacity  of  a  witness  to  those  acts  (Tosefta  Sanh.  V  §  4,  et  a  I. 
Cf.  infra  n.  266). 
«®  Tosefta  Shebuoth  III  §  8 ;  B.  Bathra  128«. 
a»  Tosefta  Sheb.  Ill  §  8;  Guittin  71";  B.  Bathra  128^— The 
last  three  classes  of  persons  (minors,  demented  persons  and 
deaf-mutes)  the  Talmud  generally  quotes  together  and  considers 
them  all  alike  (supra  §  46).  The  deaf  mute  is  disqualified, 
because  he  neither  can  hear  the  court's  admonition  (infra  §  78 
sq.),  nor  give  parol  evidence  (Guittin  1.  c.  Cf  infra  §  83,  n. 
288).  On  the  other  hand,  the  evidence  of  an  emancipated 
slave  touching  facts  witnessed  by  him  before  his  enslavement, 
of  a  cured  lunatic  testifying  to  a  fact  antedating  his  lunacy,  or 
of  a  cured  deaf-mute  to  something  antedating  his  defect,  is 
accepted  as  valid — the  legal  maxim  in  such  cases  being :  What- 
ever is  seen  by  one  of  normal  condition,  and  testified  to  by  the 
party  when  in  a  normal  condition,  is  legal  evidence  (Tosefta 
Sanh.  V  §  4;  B.  Bathra  128*;  Maimon.  H.  Eduth  XIV.  2). 
By  common  law,  "a  person  born  deaf  and  dumb,  though  ;^r/»ja 
facie  in  contemplation  of  law  an  idiot;  if  it  appear  that  he  has 
the  use  of  his  understanding  *  *  *  is  competent  as  a  witness" 
(Roscoe  95). 
^■7  Tosefta  Sheb.  Ill  §  8 ;  B.  Bathra  128" ;  Nidda  50». 


118  THE    TRIAL. 

strongly  suspected  thereof  f^^  gamblers, ^^^  usurers,^' 
and  farmers  or  collectors  of  imposts,^'  illiterate  or 
immodest   persons,-"^   relatives    by    consanguinity  or 

2fi*Eosh  Hash.  2QP;  B.  Kama  72";  Sanh.  25''  sq.— The  wit>- 
nesj^  cannot  disqualif}'  liim.self  by  self-accusation,  as  by  assert- 
ing that  he  was  incompetent,  because  of  his  being  guilty  of  a 
crime,  or  because  he  was  suborned  in  this  case,  unless  extrinsic 
testimony  corroborates  his  assertion  (Kethub.  IS**.  Cf.  infra  § 
93).  Similar  is  the  rule  of  common  law.  A  confession  of  hav- 
ing been  convicted  of  a  felony  by  the  witness  himself  does  not 
disqualify  him,  unless  it  is  corroborated  by  the  judgment  of  a 
court  of  competent  jurisdiction  (Roscoe  101). 

-•^s  Tosefta  Sanh.  V  §  2;  Sanh.  24''.— This,  however,  was  the 
case  only  when  gambling  was  their  regular  occupation.  Bj' 
common  law,  "if  the  witness  lay  a  wager  that  he  will  convict 
the  prisoner,  he  is  still  competent,  though  it  goes  to  his  credit" 
(Roscoe  105).  As  wagering  is  in  itself  a  crime  by  Talmudic 
law,  the  wagerer  is  necessarily  disqualified  j^rop/er  delictum,  and 
as  we  shall  soon  see  (n.  274),  a,\iiO  propter  affectum,  because  he  is 
directly  interested  in  the  conviction  of  the  accused. 

2'o  Tosefta  Sanh.  V  §  2  ;  Sanh.  24*'. 

2^'  Sanh.  25*'. — The  puhlicans  were  generally  classed  with  the 
sinners  and  the  heathens  (cf.  Mat.  IX,  10;  XVIII,  17 ;  XXI,  31), 
and  hated,  not  simply  because  they  held  their  leases  from  the 
Roman  oppressors  of  Judea,  but  because  they  were  usually 
guilty  of  great  extortion  and  cruelty  (cf.  Fiske  III  §  167,  1 ; 
Smith  821*'  sq.).  Theocritus  being  asked,  which  was  the 
most  cruel  of  beasts,  made  answer  :  Among  the  beasts  of  the 
wilderness,  the  bear  and  the  lion  are  the  most  cruel,  but  among 
the  beasts  of  the  city,  the  publican  and  the  parasite !  Hence 
the  publicans  were  strongly  suspected  of  unscrupulousness 
in  bearing  witness,  and  not  trusted.  Collectors,  however, 
are  disqualified  only  when  actual  extortion  is  proved  against 
them  (cf.  Maimon.  H.  Eduth  X,  4). 

*'2  Kiddushin  40*';  Sanh.  26**. — Even  eating  on  the  public 
Streets  is,  according  to  some  Rabbis,  sufficient  to  disqualify  the 
one  who  does  it. 


WITNESSES.  119 

affinity, ^^   and    persons    directly    interested    in    the 
case.^* 

2"  Sifre  I,  §  160 ;  Sanh.  27^  sq.  ;  Yer.  ib.  Ill  §  10,  p.  21^— 
Kelationship  incapacitates  the  witness  whether  it  exists  between 
him  and  the  accused,  between  him  and  another  witness  in  the 
cause,  or  between  him  and  one  of  the  judges.  AVhen  there  are 
more  than  the  required  number  of  witnesses,  and  one  of  tliem 
is  found  under  such  a  disqualification,  if  all  admit  that  they  had 
agreed  with  each  other  to  appear  together  as  witnesses  in  the 
case,  the  whole  part}'  is  disqualified,  and  the  testimony  of  all  is 
consequently  rejected  (Maccoth  5^  sq.).  This  rule  the  Eabbis 
deduce  from  the  Mosaic  prohibition  :  ''Thou  shalt  not  put  thy 
hand  with  the  wicked  to  be  an  unrighteous  witness  "  (Exodus 
XXIII,  1),  arguing  that,  as  the  whole  party  had  associated  them- 
selves with  the  incompetent  person  to  bear  witness  in  the  case, 
none  of  them  is  any  longer  trustworthy  in  that  case  (cf,  Sheb. 
SO**).  The  Attic  law  took  no  exception  to  relatives  (Smith 
626''),  and  in  some  countries  the  law  punished  even  the  nearest 
relatives  of  a  criminal  for  not  informing  against  him.  Thus 
the  law  of  the  Burgundians  decreed  that,  "if  the  wife  or  son  of 
a  person  guilt}'  of  robbery  did  not  reveal  the  crime,  they  were 
to  become  slaves.  This  law,"  remarks  Montesquieu  (B.  XXVI, 
c.  Ill),  '*  was  contrary  to  nature :  A  wife  to  inform  against  her 
husband !  a  son  to  accuse  his  father  I  to  avenge  one  criminal 
action,  they  ordained  another  still  more  criminal."  In  Rome, 
the  evidence  of  near  relatives,  though  not  excluded,  did  not 
have  much  weight.  Common  law  disqualifies  a  person  from 
acting  as  a  juror,  if  he  is  related  to  either  party  to  the  suit, 
within  the  ninth  degree  (Blackstone  III,  363);  but  it  permits  the 
nearest  relations,  except  the  lawful  husband  and  wife,  to  appear 
as  witnesses  against  each  other  (cf.  Eoscoe  112  sq), 

^*  B.  Bathra  53^ ;  Maimon.  H.  Eduth  XY.— A  glance  at  this 
array  of  exceptions  to  witnesses  must  remind  the  reader  of  the 
"challenges  to  the  polls  of  the  jury"  in  common  law,  which 
are :  propter  honoi-is  respedum,  propter  defectum,  j^ropter  affectum. 
Sindi propter  delictum  (Blackstone  III,  361  sq.),  and  serve  to  con- 
vince him  that  Rabbinic  jurisprudence,  founded,  as  it  was,  upon 


120  THE    TRIAL, 


4.  CAUTioNiNa  Witnesses. 

§  78.  The  legal  axiom  :  "  The  law  springs  from  tlie 
fact"  (ex  facto  oritur  jus),  occupies  an  important 
place  in  Talmudic  law.  The  Talmud  prohibits  going 
behind  the  returns,  saying:  "The  judge  has  noth- 
ing to  guide  him,  save  what  is  before  his  eyes,"^^^  i.  e. 
evidence.  And  as  the  witness  is  not  required  to  swear 
to  the  truth  of  his  evidence,^®  the  Kabbis  prescribe  a 

human  nature  and  divine  justice,  threw  every  possible  safeguard 
around  the  accused.  The  witnesses  prosecute  a  person  (supra  §70): 
their  testimony  convicts  him  ;  but  they  must  be  trustworthy 
and  disinterested  witnesses,  or  the  court  may  not  admit  their 
evidence.  The  testimony  of  an  accomplice  is  accordingly  not 
admissible  by  Rabbinic  law,  both  propter  affectum  and  propter 
delictum,  and  no  man's  life,  nor  his  liberty,  nor  his  reputation,  can 
1)6  endangered  by  the  malice  of  one  who  has  confessed  himself  a 
criminal.  (By  common  law,  "a  conviction  on  the  testimony  of 
an  accomplice,  uncorroborated,  is  legal." — Roscoe  119).  There- 
fore, too,  the  expectation  of  a  benefit,  though  not  necessarily  or 
legally  flowing  from  the  event  of  the  proceedings,  Avhich  in 
modern  law  does  not  render  a  witness  incompetent  (Roscoe  104), 
is,  according  to  the  Talmud,  sufticient  to  invalidate  the  testi- 
mony (Kiddushin  58b;  Bekhoroth  29=^).  The  witness  was  in- 
capacitated when  he  accepted  remuneration  for  his  testimomj 
though  he  was  at  liberty  to  accept  indemnification  for  the  con- 
sequent Zos*  of  Us  time  (cf.  Yer.  Sanh.  I  §  1,  p.  IS^  top  ;  supra  §  66). 

^^  Sanh.  6^  et  al.— Bouvier  (Diet.  s.  v.  Maxim)  quotes  a 
Latin  maxin  which  is  almost  the  exact  rendition  of  ours.  It 
reads :     iVit7«7  Tiahet  forum  ex  scena. 

276  Neither  the  Bible  nor  the  Talmud  imposes  on  the  witness 
any  oath  to  confirm  his  testimony.     The  divine  prohibition  of 
bearing  false  witness  was  considered  by  Moses  and  by  the  Jew 
ish  legislators  succeeding  him,  as  sufficient  to  induce  people  to 
state  truths  only.     Later  Jewish  sages  are  of  opinion  that  the 


CAUTIONING    WITNESSES.  121 

preliminary  caution  or  admonition,  in  the  course  of 
which  the  witnesses,  standing  in  the  presence  of  the 
whole  assembly  in  court,  are  earnestly  exhorted  to 
testify  to  such  matters  only  as  have  come  under  their 
personal  observation,  and  cautioned  against  asserting 
aught  based  on  conjecture  or  hear-say  ;^^  at  the  same 
time  they  are  forewarned  that  the  court  will  subject 
them  to  close  examination  and  searching  cross-exami- 
nation, and  carefully  weigh  the  evidence. ^^^ 

§  79.  The  language  of  the  admonition  addressed  to 
witnesses  in  criminal  cases,  is  of  so  striking  and  awful 
a  nature,  that  we  deem  it  not  superfluous  to  transcribe 
a  portion  thereof.     It  runs  thus  : 

Know  ye  that  there  is  a  vast  difference  between  the 
results  of  trials  of  civil  matters  and  those  of  criminal 
cases.  In  civil  affairs,  a  man  may  atone  for  his  guilt 
by  paying  the  injured  party  an  adequate  sum  of 
money  ;  but  in  criminal  cases  the  blood  of  the  inno- 
cent and  unjustly  condemned,  as  well  as  the  blood  of 

witness  who  would  not  tell  the  truth  without  an  oath,  would 
not  scruple  to  assert  falsehood  with  an  oath  (cf.  B,  Joseph  H. 
Mishpat  XXXiy,  38;  Tosaf.  Kidd.  43^8.  v.  HasUa).  Indeed, 
some  Jewish  philosophers  consider  swearing  injurious  in  itself; 
for  he  who  swears  is  ipso  facto  suspected  of  lacking  credibility 
(cf  Philo  Judaeus,  De  Decalogo  III;  Josephus,  II  Wars  VIII, 
6;  infra  n.  312). 

•'"  So,  by  the  Athenian  law,  a  witness  could  testify  to  whnt  he 
had  seen,  but  not  to  what  he  had  heard.  When,  liowever, 
he  had  heard  anything  relating  to  the  question  before  court 
from  a  person  who  had  died  in  the  meantime,  an  exception  was 
made  to  the  rule,  and  what  he  had  heard  from  the  deceased  per- 
son was  admissible  evidence  (Smith  15''). 

»«Sanh.  37^  Cf  infra  §91. 


122  THE    TRIAL. 

the  victim's  possible  issue  to  the  end  of  all  genera- 
tions [which  is  cut  off  by  his  premature  death],  falls 
on  the  heads  of  the  false  witnesses.  That  such  is  the 
case  clearly  appears  from  God's  rebuke  administered 
to  Cain  who  slew  Abel,  wherein  we  find  the  words  : 
"The  voice  of  thy  brother's  bloods  cries  unto  me, 
&c."^^  Now,  since  th§  Lord  did  not  say,  "Thy 
brother's  blood"  [Bam],  but  "Thy  brother's  bloods" 
[Demay],  He  intended  to  inculcate  the  idea  that,  in 
slaying  Abel,  Cain  became  guilty  of  shedding  the 
blood  of  the  victim's  progeny  as  well  as  of  shedding 
the  victim's  own  blood.  Again,  the  fact  that  at  the 
beginning  God  created  one  man  only,  should  impress 
upon  you  the  idea  that  whosoever  occasions  the  loss 
of  a  single  innocent  life  is  as  great-  a  sinner  as  if  he 
had  destroyed  a  whole  generation  ;  and,  on  the  con- 
trary, whosoever  saves  a  single  innocent  life,  is  as 
meritorious  as  if  he  had  saved  the  world, — But  these 
ideas  must  not  deter  you  from  testifying  to  what  you 
actually  know.  Scripture  declares:  "The  witness 
who  hath  seen  or  known,  and  doth  not  tell,  shall  bear 
his  iniquity.  "^^  Nor  muGt  ye  scruple  about  becoming 
the  instruments  of  the  alleged  criminal's  death  [which 
cannot  undo  the  crime],  Kemember  the  Scriptural 
maxim  :  "In  the  destruction  of  the  wicked  there  is 
joy."^«^ 

^9  Genesis  lY,  10  sq, 

^  Lev.  V,  1.     Cf.  supra  n,  104, 

2«i  Prov.  XI,  10,  The  object  of  the  closing  admonition  is, 
not  only  to  remind  the  honest  witness  of  his  duty  to  bear  testi- 
mony, but  also  to  induce  him  to  testify  even  against  a  person 
tried  for  life,    impressing  upon  him   the  idea  that  qui  j^crcit 


EXAMINATION.  123 


5.  Examination. 


§  80.  All  examinations  are  conducted  in  public,*^^ 
and  in  the  presence  of  the  accused. ^^  The  judges 
occupy  their  seats,  the  witnesses  and  the  accused  stand 
before  them.^^ 

§  81.  The  general  dilation  having  been  heard,  the 
witnesses  retire  from  the  presence  of  the  court,  only 
one  remaining  to  be  examined.  One  after  the  other 
of  his  associates  closely  follows  him  on  the  witness- 
stand.^ 


nocentihus  innocentihiis  punit;  and  that,  although  the  culprit's 
death  will  not  counteract  the  misdeeds  for  which  he  is  to 
be  tried,  his  removal  from  the  theatre  of  his  crimes  will  in 
itself  be  a  benefit  to  the  public  (of.  Sifre  II  §  187,  end  ;  supra  n. 
104). — The  Athenians,  too,  considered  as  a  part  of  the  duty 
which  every  man  owes  to  the  state,  the  obligation  to  attend  as 
witnesses,  both  in  civil  and  criminal  proceedings,  and  to  give 
such  evidence  as  one  is  able  to  give  (Smith  626"^). 

«^2  Sifre  II  §  149 ;  Sanh.  30^ 

2'3  Sifre  II  §190;  Keth.  20«;  B.  Kama  112'>.— The  Talmudic 
rule  of  law  being:  "Testimony  must  not  be  heard,  barring  ex- 
ceptional cases,  in  the  absence  of  the  party  concerned"  (B.  Kama 
1.  c).  Another  rule  of  law  is:  "The  cause  of  a  client  must 
not  be  disposed  of  unless  he  is  present*'  (Sanh.  79"^) ;  and  a  third: 
"No  man  may  be  convicted  unless  he  is  present"  (Keth.  11%  et 
al.).  From  these  rules  it  clearh"  follows  that  outlawry  for  non- 
appearance at  trial  could  never,  by  Talmudic  law,  be  decreed 
against  an  alleged  criminal,  as  was  frequentl}'  done  in  Rome 
and  in  England  (cf.  Blackstone  IV,  319  sq.).  Especially  are 
these  rules  directed  against  secret  accusations  which,  owing  to 
defective  laws,  are  sanctioned  as  necessary  evils  (cf.  Beccaria 
§  15). 

■^  Sifre  II  §  190  ;  Yer.  Yoma  VI  §  1,  p.  43b  hot. ;  Sheb.  30a.— 
The  ricrht  to  examine  witness  is  not  confined  to  the  acting 


124  THE   TRIAL. 


§  82.  All  evidence  must  be  direct,  and  not  circum- 
stantial or  presumptive.^^  Be  the  chain  of  evidence 
ever  so  strong,  if  not  all  links  are  forged  by  direct 
eye-testimony,  and  that  of  at  least  two  competent  wit- 
nesses, the  accused  cannot  be  adjudged  guilty.-*' 


judges,  but  shared  by  the  probationers  also  (Sanh.  41"  sq.  Cf. 
supra  §  04).  And  this  is  not  merely  a  privilege,  but  a  duty, 
where  the  probationer  sees  that  his  superiors  are  mistaken.  Nor 
must  he  delay  in  respectfully  pointing  out  the  mistake.  He 
must  at  once  call  the  attention  of  the  court  to  it  (Sheb.  31*.  Cf. 
Ab.  Zara  19). 

^5  Tosefta  Sanli.  VI  §  3 ;  Sanh.  40^^;  Maccoth  6*. 

■■^  Sanh.  37^ ;  Maimon.  H.  Sanh.  XII,  3.  In  Rome  a  sentence  of 
death  or  infamy  was  often  founded  on  the  slight  and  suspicious 
eveideuce  of  a  child  or  a  servant ;  and  the  guilt  of  the  greeu 
faction,  of  the  rich,  and  of  the  enemies  of  Theodora,  was 
presumed  by  the  judges  (Gibbon  c.  XLIV). 

•^'  Sanh.  37'^  Maimon.  H.  Sanh.  XX.  1.— As  an  illustration 
m  point,  the  Talmud  (1.  c. ;  Yer.  Sanh.  IV  §  II.  p.  22b  hot.)  re- 
cords the  following  episode  in  the  life  of  Simon  ben  Shettah. 
That  sage  once  saw  a  man  hotly  pursuing  another  who  took 
refuge  in  a  deserted  building.  The  sage  followed.  On  entering 
the  place,  he  beheld  in  the  pursuer's  hand  a  sword  covered  with 
blood,  while  before  him  lay  the  victim  weltering  in  his  own 
blood.  Thereupon  the  sage  exclaimed  :  "By  my  salvation, 
thou  art  the  murderer  of  this  victim !  But  what  can  I  do  ? 
Thy  blood  is  not  in  my  hand,"  i.  e.  I  cannot  prosecute  thee 
and  have  thee  legally  convicted  (cf.  infra  n.  389).— In  modern 
courts,  violent  presumption  is  admitted  in  evidence,  and  the  in- 
stance selected  to  illustrate  the  nature  of  presumption  in  crimi- 
nal cases  is  akin  to,  though  lighter  than  the  one  before  us ;  yet 
it  is  termed  "violent  presumption."  and  considered  as  "proof 
next  to  the  sight  of  the  fact  itself  (Roscoe  12  sq.).  Also  by 
Talmudic  law  violent  presumption  is  admitted  as  legal  evidence 
in  criminal  cases,  but  only  with  reference  to  the  status  of  the 
party.     Thus,  if  a  man  and  a  woman  live  together,  and  keep 


EXAMINATION.  125 

§  83.   All  evidence  must  be  given  vive  voce,'^^  and  in 


with  them  a  youth  and  a  maiden  as  their  cliildren,  the  parties 
are  violently  presumed  to  stand  in  the  relations  of  husband  and 
wife,  parents  and  children.  If  now  it  is  duly  proved  that  there 
was  illicit  correspondence  between  the  man  and  the  maiden,  or 
between  the  woman  and  the  youth,  or  between  the  children 
themselves,  the  guilty  parties  will  be  capitally  punished  for  in- 
cest, though  there  is  no  other  evidence  to  prove  their  consan- 
guinal  relationship  (Ividd,  80« ;  Maimon.  H.  Is.  Biah  I,  20).  On 
a  charge  of  adultery,  however,  neither  the  paramour  nor  the  al- 
leged adulterer  can  be  capitally  punished,  unless  the  presumed 
conjugal  relationship  is  of  at  least  thirty  days'  standing,  and 
based  upon  the  assertions  of  the  parties  themselves  (Yer.  Kidd. 
IV  §  10,  p.  66"  hot. ;  Maimon.  1.  c.  21.  Cf.  B.  Bathra  167").— 
By  common  law,  in  a  civil  suit  for  adultery,  as  also  upon  indict- 
ments for  polygamy,  a  marriage  in  fact  must  be  proved ;  though 
generally,  in  other  cases,  reputation  and  cohabitation  are  suth- 
cient  evidence  of  marriage"'  (Blackstone  III,  140). 

2«s  Yebamoth  3P;  Maimon.  II.  Eduth  III,  140.— This,  as  well 
as  the  next  proviso,  is  based  on  the  Scriptural  dictum:  ''At  the 
mouth  of  two  witnesses,  or  of  three  Avitnesses,  shall  he.  that  is 
to  die  [by  human  hands],  be  put  to  death  (Deut.  VII,  6). — The 
Attic  law  required  all  testimonial  evidence  to  be  in  writing,  in 
order  that  there  might  be  no  mistake  about  the  terms,  and  that 
the  witness  might  leave  no  subterfuge  for  himself  when  con- 
victed of  falsehood  (Smith  626").  Talmudic  jurisprudence  is 
more  in  consonance  with  the  emotional  nature  of  man,  when 
it  adopts  parol  evidence  as  the  safest  means  of  arriving  at  truth, 
believing  that  a  man  will  not  as  readily  lie  in  the  presence  of 
the  party  concerned,  as  he  might  do  in  a  document  prepared 
and  read  behind  the  person's  back  (Guittin  51";  Tosafoth  ib. 
s.  V.  Ain.  Cf.  Sheb.  42^  etal.);  or,  as  Blackstone  says:  "As 
much  may  be  frequently  collected  from  the  manner  in  which 
the  evidence  is  delivered,  as  from  the  matter  of  it"  (III,  373). 
And  the  additional  requirement  which  imposes  on  the  official 
scribes  the  duty  of  writing  down  the  testimony  (cf.  supra  n. 
201),  is  an  additional  safeguard  against  subterfuge  and  impos- 


126  THE    TRIAL. 

a  language  understood  by  the  judges. ^^'  It  must  fur- 
thermore be  deposed  in  the  presence  of  the  whole 
court,^^"  and  must  cover  the  whole  case.^^^ 

§  84.  Each  witness  is  required  to  give  positive 
answers  to  two  kinds  of  questions:  Main  questions 
and  Test  questions  f^^  while  the  judges  are  required 
to  cross-question  him  closely,^^^  and  to  be  exceedingly 

ture.  A  subsequent  rigorous  oral  cross-examination,  b}'  evok- 
ing contradictions  between  the  answers  and  the  recorded  state- 
ments of  the  witness,  can  more  easily  lead  to  the  betrayal  of 
the  falseness  of  his  testimony. 

2-9Maccoth  Q^;  Maimon.  H.  Sanh.  6;  ib.  XXI,  8.  Cf.  supra 
n.  204. 

•^^  Sanh.  80b ;  Maimon.  H.  Eduth  IV,  1-7.  Cf.  Kesef  Mishneh 
ib.  7  ;  §  supra  u.  222. 

29'  Sanh.  86^;  Maccoth  6^,  et  al.— The  Bible  says:  "At  the 
mouth  of  two  witnesses,  or  at  the  mouth  of  three  witnesses, 
shall  the  matter  be  established"  (Deut.  XIX,  15),  upon  which 
the  Talmud  bases  the  rule  that  each  witness  must  testify  to  the 
whole  matter,  and  not  to  part  of  the  matter  only.  Thus,  to 
constitute  the  capital  crime  of  kidnapping,  there  must  be  both 
abduction  and  selling  (supra  n.  99).  J^^ow,  if  two  parties  of 
witnesses  appear  against  the  criminal,  one  testifying  to  the 
abduction,  and  the  other  to  the  selling,  the  criminal  cannot 
be  sentenced  to  death,  for  neither  of  the  parties  has  established 
the  u'hole  matter. 

292  Sanh.  40^  Maimon.  H.  Eduth  I,  4. 

293  The  judges  are  not  only  prohibited  from  passing  summary 
sentence  on  the  culprit  to  whose  crime  they  themselves  were 
eye-witnesses  (Yer.  Sanh.  I,  §  1,  p.  18" ;  Maccoth  12^^),  but  must 
be  personally  ignorant  of  the  circumstances  in  the  case,  or  they 
may  not  sit  in  judgment  thereon;  for  the  rule  is:  None  who 
may  be  a  competent  witness  in  the  cause,  may  be  judge  of  the 
cause  fTosefta  Maccoth  III,  §  7.  Cf.  supra  n.  143).— The 
Eoman  law  is  of  the  same  opinion.  It  says :— The  judge  ought 
to  proceed  according  to  the  allegations  and  proofs  laid  before 


EXAMINATION.  127 

guarded  in  tlieir  utterances,  lest  the  witness  draw 
from  them  hints  how  to  answer  evasively.^®* 

§  85.  The  main  questions  which  every  witness  is 
required  to  answer,  relate  to  the  persons,  the  time,  the 
place  and  the  manner  of  the  alleged  crime.  ^^ 

§  86.  With  reference  to  the  person,  the  Talmud 
requires  that  the  witnesses  be  certain  of  his  identity, 
and  of  his  having  been  duly  forewarned. '^^  The  least 
doubt  on  this  head  invalidates  the  testimony.-^'' — If 

him,  and  not  according  to  his  own  Icnowledge  of  the  fact;  for 
he  is  to  judge  as  a  public  person,  not  as  a  private  one,  and  he 
ought  not  to  be  judge  and  witness.  I^either  ought  tlie  lives 
and  fortunes  of  men  to  depend  upon  the  pretenses  of  his  own 
knowledge.  In  such  a  case,  the  judge  ought  to  lay  aside  his 
office  for  a  time,  and  become  a  witness  (Wood,  Civil  Law  B. 
IV,  c.  1). 

2«  Aboth  I.  §  9 ;  Aboth  de  R.  :N"athan  X.  Cmp.  Keth.  52^,  86*; 
Yer.  B.  Bathra  IX,  §  6,  p.  17^  top. 

^  Sanh.  40=*  sq.;  Maimon.  H.  Eduth  I,  4. 

293  Cf.  supra  §  16,  n.  68. 

^^'Sanh,  40a;  Maimon.  H.  Sanh.  XII,  1.— The  identity  thus 
required  is  not  confined  to  the  person's  being,  but  extends  to 
facts  also.  Thus,  if  murder  is  charged,  and  several  persons 
are  implicated  in  that  charge,  each  witness  is  required  to  iden- 
tify the  person  who  gave  the  last  or  death-blow,  for  only  this 
one  is  answerable  with  his  life  for  the  life  of  the  victim  (supra 
§43). — By  common  law.  accomplices,  or  accessories  before  the 
fact,  share  the  punishment  with  the  principal  (supra  n.  128). 
Thus,  when  an  indictment  charges  that  A  gave  the  mortal 
stroke,  and  that  B  and  C  were  present  aiding  and  abetting,  even 
if  it  appear  in  evidence  that  B  gave  the  mortal  stroke,  and  A 
and  C  were  aiding  and  abetting,  they  may  all  be  found  guilty 
of  murder  or  manslaughter,  as  circumstances  may  yavy  the 
case.  The  stroke  of  one  is,  in  the  consideration  of  common 
law,  the  stroke  of  all,  and  the  identity  of  the  person  supposed 
to  have  given  the  stroke  is  an  immaterial  circumstance,   the 


128  THE    TRIAL. 

the  crime  charged  of  is  murder,  the  identity  of  the 
victim  and  of  his  race  must  he  estahlished;^^  if  idol- 
atry, the  name  of  the  idol  must  he  given. ^^^ 

§  87.  With  reference  to  the  time,  the  witness  must 
furnish  the  exact  date  of  the  commission  of  the  crime. 
He  must  name  the  number  of  the  septenary  in  the 
jubilee  cycle  ;^°°  the  number  of  the  year  in  the  septe- 
nary; the  name  or  number  of  the  month  in  the  year; 

person  giving  the  stroke  being  no  more  than  the  instrument  by 
which  the  others  strike  (Roscoe  83).  But  according  to  Talmu- 
dic  law,  such  a  ''circumstance"  is  very  material,  as  it  might 
acquit  the  accused  of  the  charge  of  murder,  though  it  would 
render  him  guilty  of  culpable  homicide  (cf.  supra  §  36). 

»*  Sanh.  40";  Maimon.  H.  Sanh.  XII,  1. 

^  Sanh.  40'^;  Maimon.  H.  Eduth.  4.     Cf.  supra  n.  43. 

3»  Cf.  Lev.  XXV,  8  sq. — "By  common  law  there  is  no  general 
statute  of  limitation  applicable  to  criminal  proceedings  *  * 
In  New  York,  indictments  for  murder  may  be  found  at  any 
time ;  in  all  other  cases,  indictments  must  be  found  and  filed  in 
the  proper  office,  within  three  years  after  the  commission  of 
the  oftense"  (Blackstone  IV,  301  n.  1).— Nor  do  we  know 
of  any  general  limitation  to  criminal  prosecution  by  Talmudic 
law ;  and  from  the  fact  that  the  witness  was  required  to  give 
the  date  minutely  (stating  the  number  of  the  year  in  the  sep- 
tenary and  jubilee-cycle),  it  would  appear  that  the  lapse  of  time 
had  no  effect  on  guilt.  Still,  judging  by  the  spirit  of  Talmu- 
dic jurisprudence,  and  seeing  that  by  that  jurisprudence  per- 
sonal disabilities,  acquired  in  consequence  of  conviction  for 
crime,  are  removed  by  time  and  circumstances  (cf.  infra  §  140 
sq.),  it  may  be  assumed  that  for  the  most  heinous  crimes,  espe- 
cially murder,  (cf.  infra  n.  424)  there  was  no  limitation,  but  for 
minor  crimes,  if  a  considerable  time  had  elapsed  since  the  com- 
mission thereof,  no  prosecution  could  be  inaugurated  against 
the  criminal. 


EXAMINATION.  129 

the  day  of  the  month  and  of  the  week;  and  the  hour  of 
the  day.3°i 

§  88.  With  reference  to  the  place,  the  location  must 
he  distinctly  stated,  and  the  immediate  surroundings 
minutely  described.  ^^ 

30'  Sanh.  40a;  Maimon.  H.  Eduth.  I,  4. — The  several  particu- 
lars referring  to  time  and  place,  must  be  furnished  with  the 
greatest  possible  precision  and  certainty,  and  that  by  the  whole 
party  of  witnesses.  The  slightest  disagreement  on  the  part  of 
the  witnesses,  in  regard  to  any  one  of  these  particulars,  invali- 
dates the  entire  testimony.  Even  where  a  number  of  witnesses 
greater  than  that  required  by  law,  as  three,  appear,  and  two  agree 
on  every  point,  but  the  third  diflers  from  them  as  to  more  than 
one  day,  or  more  than  one  hour  in  the  day,  the  whole  testimony 
is  invalidated.  For  time  and  place  are  the  onlj'  points  which 
affect  the  person  of  the  witness  himself:  he  not  being  able  to 
be  at  more  than  one  spot  at  any  one  time;  time  and  place  are 
accordingly'  the  onlj'  grounds  on  which  the  witness  may  be 
confuted  (infra  §  95)  and  duly  punished  (supra  §  31),  and  the 
Talmud  says:  Any  testimony  which,  owing  to  an  intrinsic 
defect,  is  not  liable  to  confutation,  is  no  testimony  (B.  Kama 
75'';  Sanh.  41a,  et  al.), — The  same  is  the  case  where  only  a  legal 
number  of  witnesses  appear,  and  one  of  them  is  not  certain  as 
to  any  one  of  these  particulars.  But  when  there  are  more  than 
the  required  number  of  witnesses,  if  only  two  of  them  testify 
to  time  and  place,  though  all  the  rest  aver  uncertainty,  the 
charge  is  sustained  on  the  testimony  of  the  two  (Sanh.  41''; 
Maimon.  H.  Eduth.  II,  3). 

3*2  Sanh.  40^  Cf.  infra  §  90,  n.  304.— By  common  law,  while 
it  is  necessary  to  name  the  time  when^  and  the  place  where,  the 
alleged  fact  was  committed,  a  mistake  in  these  points  is  in 
general  not  held  to  be  material,  provided  the  time  be  laid  pre- 
vious to  the  finding  of  the  indictment,  and  the  place  be  within 
the  jurisdiction  of  the  court  (Blackstone  IV,  306).  According 
to  Talmudic  law,  a  very  material  difference  would  ensue  from 
a  mistake  in  these  points,  as  clearly  appears  from  what  is  stated 
9 


130  THE    TRIAL. 

§  89.  With  reference  to  the  manner,  witnesses  must 
set  forth  the  principal  circumstances  connected  with 
the  alleged  crime.  If  the  crime  charged  is  murder, 
they  must  state  how  the  killing  was  done,  and  with 
what  instrument;  if  idolatry,  the  way  in  which  hom- 
age was  paid  must  be  described.  ^''^ 

§  90.  The  test-questiotis  touch  those  particulars  which, 
while  they  are  not  exactly  matter  of  prime  importance, 
may  serve  to  establish  or  to  disprove  the  main  testimony. 
Thus,  in  the  case  of  murder,  the  witness  is  called 
upon  to  describe  the  dress  of  the  victim,  or  of  the 
accused,  worn  at  the  commission  of  the  crime;  or  to 
state  the  color  of  the  ground  on  which  the  crime  was 
committed.^"* 

in  the  preceding  note.  Moreover,  suppose  the  witnesses  to 
allege  that  the  crime  has  been  committed  in  the  eastern  part 
of  a  town;  now,  if  it  appears  in  evidence  that  at  the  stated 
time,  they  were  in  the  ivestern  part  of  the  town,  whence  they 
could  not  have  witnessed  the  act,  they  stand  confuted,  and  sub- 
ject to  the  penalties  of  the  law  in  such  cases  (Maccoth  5^;  Mai- 
mon.  H.  Eduth  XIX,  1). 

3'3  Sanh.  40%  41^;  Maimon.  H.  Eduth  I,  4 ;  II,  2.— By  common 
law,  a  person  cannot  be  convicted  of  one  species  of  murder,  as 
of  poisoning,  when  the  indictment  charges  him  with  another, 
as  of  starving.  But  if  only  the  concomitant  circumstances  are 
varyingly  reported,  "as  if  a  wound  be  alleged  to  be  given  by 
a  sword,  and  it  prove  to  have  arisen  from  a  staff,  or  an  axe,  or 
a  hatchet,  the  diflference  is  immaterial"  (Blackstone  IV,  19G). 
According  to  Talmudic  law,  a  contradiction  of  this  kind  inva- 
lidates the  whole  testimony. 

3^  Sanh.  32a,  40";  Maimon.  H.  Eduth  I,  4  sq.— In  the  test- 
questions  more  latitude  is  allowed  than  in  the  principal  ones. 
Here  uncertainty  does  not  invalidate  the  positive  part  of  the 
testimony,  even  when  all  the  witnesses  manifest  an  equal  de- 


EXAMINATION.  131 

§  91.  The  direct  questioning  is  followed  by  a  severe 
cross-examination  which  may  be  extended  ad  libitum, 
especially  when  a  striking  similarity  in  the  language 
of  the  several  statements  becomes  apparent.***  Under 
such  circumstances  the  effort  is  to  perplex  and  abash 
the  witnesses. ^^ — After  the  cross-examination  the  wit- 


gree  of  indecision ;  for  they  are  not  expected  to  take  notice  of 
such  immaterial  circumstances.  In  this,  Talmudic  law  agrees 
with  the  rule  of  common  law,  where  "if  an  averment  may  be 
entirely  omitted  without  affecting  the  charge  against  the  prisoner, 
and  without  detriment  to  the  indictment,  *  *  *  jt  may  be 
disregarded  in  evidence  *  *  *  and  need  not  be  proved  "  (Ros- 
coe  84).  Bnt  where  the  witnesses  do  testify  to  them  and  con- 
tradict each  other,  the  contradiction  has  the  same  effect  on  the 
whole  testimony,  as  contradictions  in  the  answers  to  the  prin- 
cipal questions  (Sifre  II,  §  93 ;  Sanh.  40%  41b),— How  far  the 
Rabbis  went  in  testing  witnesses  is  illustrated  in  the  Talmud 
by  the  statement  that  once  a  judge  tested  them  almost  literally 
by  an  experimentum  crucis.  At  a  trial  of  a  case  of  murder  alleged 
to  have  been  perpetrated  near  a  fig-tree,  a  probationer  required 
the  witnesses  to  describe  the  figs :  whether  they  were  light  or 
dark;  whether  they  had  long  or  short  stems,  thick  or  thin 
(Sanh.  40%  41%  Cmp.  Hist,  of  Susannah  54-58).— Nor  were 
the  judges  always  satisfied  with  the  mere  averments  of  the  wit^ 
nesses.  When  occasion  rendered  it  practicable,  they  subjected 
the  proofs  to  physical  tests.  Thus  it  is  recorded  that  when,  to 
prove  infidelity  in  a  woman,  a  prosecutor  produced  albumen 
of  egg  and  represented  it  as  spermatic  fluid,  the  judge  applied 
the  corpus  delicti  to  the  fire,  knowing  that  albumen  coagulates 
under  heat,  while  spermatic  fluid  does  not;  and  by  this  test  he 
exposed  the  impostor  (Guittin  bl^). 

^  Concurrence  as  to  facts  is  a  conditia  sine  qua  non  in  evi- 
dence ;  but  similarity  in  expressions  awakens  suspicion  of  con- 
spiracy and  coaching  (Yer.  Sanh.  Ill,  §  9,  p.  21=  top). 

^  Sotah  8^;  Sanh.  32^.— When  the  judge,  in  spite  of  the  appa- 
rently artless  answers  to  his  direct  and  cross-questions,  still 


132  THE    TRIAL. 

ness  is  dismissed,  and  is  not  allowed  to  correct  or  re- 
cant any  part  of  his  testimony,  even  when  he  offers 
reason  for  his  proposed  correction  or  recantation.^ 

6.  The  Defendant. 

§  92.   All    the  prosecuting  witnesses    having  been 
duly  examined,  the  court  directs  itself  to  the  defend- 

suspects  that  the  evidence  before  him  is  not  altogether  ingenu- 
ous, or  that  some  facts  concerning  the  case  are  withheld,  he 
may  not  render  judgment  in  the  case,  and  throw  the  responsi- 
bility for  the  wrong  accruing  to  the  unfortunate  victim  on  the 
heads  of  the  witnesses.  He  must,  under  such  circumstances, 
retire  from  the  bench,  and  leave  the  case  to  be  disposed  of  by 
others  who  do  not  share  his  misgivings  (Sheb.  30'^;  Maimon. 
PI.  Eduth  XXIY,  3).  This  rule  is  based  on  the  Scriptural  com- 
mand:  "Keep  far  from  a  false  matter"  (Exodus  XXIII,  7). 

3^7  Sifre  II,  §  190  ;  Tosefta  Keth.  II,  §  1 ;  Sanh.  44b.  cf.  Sheb. 
31b. — Thus,  when  he  avers  that  he  was  mistaken  in  his  original 
statements ;  or  that  he  was  no  competent  witness,  because  of  a 
disqualification  in  consequence  of  conviction  for  a  misdemeanor 
(cf.  supra  §  77);  or  even  when  he  confesses  that  he  was  prompted 
to  prosecute  by  a  spirit  of  vengeance,  as  was  the  case  with  the 
witnesses  who  conspired  against  the  son  of  Simon  ben  Shettah 
(supra  n.  239);  for  at  this  stage  of  the  proceedings,  the  Talmu- 
dic  rule  is:  What  is  once  said,  cannot  be  unsaid  (Keth.  18*;  B. 
Bathra.  168^;  et  al.  Cf.  infra  n.  319 ;  §  103).  When,  however, 
the  witness  appears  to  have  labored  under  a  palpable  misappre- 
hension, as  when  his  testimony  appears  decidedly  adverse  to 
the  party  calling  him,  he  is  allowed  to  correct  his  testimony. 
In  such  cases  the  Talmud  says :  It  is  self-evident  that  no  one 
brings  witnesses  to  convict  himself  (B.  Meziah  28^;  H.  Mish- 
pat  XXIX,  1),  and  that  the  witness  certainly  came  with  the 
intention  of  testifying  in  his  favor  (Rashi  ad  B.  Meziah  1.  c). 


THE   DEFENDANT.  133 

ant.     He  is  encouragingly  addressed, ^^  and  called  upon 
to  present  disproving  testimony.^"® 

§  93.  Not  only  is  self-condemnation  never  extorted 
from  the  defendant  by  means  of  torture,  ^^°  but  no 
attempt  is  ever  made  to  lead  him  on  to  self-incrimi- 
nation. Moreover,  a  voluntary  confession  on  his  part 
is  not  admitted  in  evidence,  and  therefore  not  compe- 
tent to  convict  him,  unless  a  legal  number  of  witnesses 
minutely  corroborate  his  self-accusation.^"     No  man 

308  Sanh,  32'' — In  modern  practice,  when  the  prisoner  has  put 
himself  upon  trial,  the  clerk  of  the  Court  says:  "God  send 
thee  a  good  deliverance"  (Blackstone  lY.  341). 

*9  In  common  law  the  rule  formerly  obtained  that,  on  capital 
charges,  the  accused  was  not  allowed  to  exculpate  himself  by 
the  testimony  of  witnesses;  and  though  from  and  after  the 
reign  of  Mary  I,  the  court  gradually  introduced  the  practice  of 
examining  witnesses  for  the  prisoner,  this  examinatiou  was  not 
held  under  oath,  and  consequently  the  jur}"  gave  less  credit  to 
the  prisoner's  evidence  than  to  that  of  the  prosecution  (Black- 
stone  IV,  359).  It  was  not  until  the  close  of  the  seventeenth 
century  that  the  admission  of  witnesses  for  the  prisoner  upon 
oath  was  enacted  (ib.  441). 

^'"  Talmudic  jurisprudence  knows  of  no  form  of  judicial  tor- 
ture, which  was  so  frequently  practised  b}^  the  Greeks  and 
Romans,  and  even  among  modern  nations  (supra  n.  263). 

3"  Tosefta  Sanh.  XI,  §1,5;  Keth.  27i';  Sanh,  9\  The  reason 
assigned  for  this  enactment  is  the  wish  to  avoid  the  possibility  of 
committing  judicial  homicide  on  self-accusing  lunatics,  or  on  per- 
sons who,  in  desperation,  wish  to  cut  short  their  earthly  exist- 
ence, and  to  effect  this,  falsely  accuse  themselves  of  some  capital 
crime. — By  English  law,  standing  mute,  or  not  pleading  to  an 
indictment,  amounted  to  a  constructive  confession,  and  the 
accused  was  thereupon  adjudged  guilty,  and  sentenced  and  pun- 
ished, as  if  he  "•had  been  duly  convicted  by  verdict  or  confes- 
sion of  the  crime"'   (Blackstone  IV,  329).      And  this  enact,- 


134  THE   TRIAL. 

is  competent  to  convict  himself,  says  the  Talmud:  ''he 
is  his  own  kin,"^^^  and  we  have  just  seen  that  kin- 
folks  are  not  admissible  as  witnesses.  This,  however, 
does  not  a23ply  to  the  defense.  In  his  own  exculpa- 
tion, the  accused  is  a  competent  witness. ^^^  In  short, 
the  Talmud  does  not  presume  the  guilt  of  the  accused, 
and  therefore  considers  him  innocent,  until  the  con- 
trary is  proved  by  competent  witnesses  upon  whom 
the  burden  of  proof  rests. ^" 

§  94.   The  witnesses  for  the  defense  are  subject  to 
the  same  rules  as  those  of  the  prosecution.^^* 

ment  was  in  itself  a  merciful  improvement  on  previous  prac- 
tices, which  compelled  the  prisoner  to  plead.  He  was  put  into 
a  dark  room,  where  he  was  denuded  and  laid  on  his  back  on 
the  bare  floor,  and  a  heavy  weight  placed  on  him.  Very  little 
sustenance  was  allowed  him  during  this  ordeal  which  was  known 
under  the  name  of  jienance,  or  pressing  to  deaths  and  sometimes 
continued  for  forty  days  (ib.  327).  ''Thus  rating  a  man's  vir- 
tue by  the  hardiness  of  his  constitution,  and  his  guilt  by  the 
sensitiveness  of  his  nerves"  (cf.  Beccaria  §  16). 

312  Sanh.  9^  et  al.  That  no  oath  was  administered  to  the 
accused  is  self-evident ;  for  if,  as  we  have  seen  (supra  §  78,  n. 
276)  with  reference  to  the  witness  who  is  to  be  entirely  disinte- 
rested (supra  §  77,  n.  274),  the  presumption  is  that  he,  who 
would  not  tell  the  truth  without  an  oath,  will  not  tell  it  with 
an  oath, — how  much  less  can  it  be  expected  that  the  oath 
will  have  any  effect  on  the  only  interested  party,  the  accused 
himself,  and  force  from  him  a  statement  of  the  truth  which 
may  convict  him  ?!  Beccaria  (§18)  justly  condemns  the  cus- 
tom of  putting  the  accused  under  oath,  believing  that  '  in  most 
men  religion  is  silent  when  interest  speaks.' 

3'3  Sanh.  40»;  Maimon.  H.  XIII,  1.     Cf.  infra  §  119. 

''■•  Tosefta  Sanh.  XI,  §  1 ;  Kidd.  76";  Tosefoth  Yom  Tobe.  ib. 
c.  IV,  §  10;  Sanh.  80^  Cf.  Keth.  75^;  Sheb.  46";  Sanh.  32"; 
Arakhin  22*;  Nidda  2^  sq.;  supra  §  41. 


DISPROVAL    AND    CONFUTATION,  135 


7.    DiSPROVAL    AND    CONFUTATION. 

§  95.  Witnesses  may  be  either  disproved  or  con- 
futed. They  are  disproved  when  conter-testimony  is 
produced,  demonstrating  that  the  crime  could  not 
have  been  committed  by  the  alleged  criminal,  at  the 
time  or  the  place  stated ;^^®  they  are  confuted  when  it 
appears  from  the  counter-testimony  that  they  could 
not  possibly  have  witnessed  the  commission  of  the 
crime.  ^'^ 

§  96.  The  effect  of  disproval,  at  any  stage  of  the 
proceedings,  is  simply  negative:  it  condemns  no  one; 
but  stops  all  further  action  on  the  case,  and  sets  the 
prisoner  free.^^® 

3'*  In  fact  the  witnesses  for  the  defense  are  at  the  same  time 
witnesses  against  the  prosecution  whom,  as  we  shall  presently 
see  ( §  97),  their  evidence  may  cause  to  exchange  places  with  the 
defendant  (Sanh.  32'^). 

3'6  Maccoth  5^;  Maimon.  H.  Eduth  XVIII,  2.— Thus,  when 
the  prosecuting  witnesses  charge  A  with  having  slain  B,  and 
others  appear  and  testify  that,  at  the  time  stated,  A  was  not  at 
the  place  named,  or  that  B  has  not  been  slain  at  all ;  or  when 
the  alleged  victim  of  a  murder  himself  appears  in  propria  per- 
sona (B.  Kama  74^;  Maimon.  H.  Eduth  XVIII,  6). 

3"  Maccoth  5=^;  Maimon.  H.  Eduth  XVIII,  2.— When  coun- 
ter-evidence proves  the  alibi  of  the  witnesses  themselves  (cf. 
supra  §  31,  n.  302). 

3'*  Maccoth  5%  et  al. — According  to  the  scholiasts  on  Plato, 
it  requires  the  conviction  of  more  than  half  the  witnesses  of 
falsum  or  perjury,  in  order  to  obtain  a  reversal  of  the  sentence 
passed  on  a  convict  in  conse"quence  of  their  testimony  (Smith 
628'').  By  Talmudic  law,  if  one  witness  in  a  hundred  is  found 
incompetent,  the  testimony  of  the  whole  party  is  thrown  out 
(supra  n.  273),  the  legal  maxim  being:   ''If  part  of  the  testi- 


136  THE    TRIAL. 

§  97.  The  effect  of  confutation  on  the  case,  at  any 
time,  is  the  same  as  that  of  disproval;  but  its  effect 
on  the  confuted  witnesses  depends  on  the  stage  of  the 
proceedings:  if  the  confuting  testimony  is  presented 
before  the  verdict  is  pronounced,  it  amounts  to  a  mere 
disproval;  hut  if,  after  the  verdict  is  pronounced, 
they  become  subject  to  the  penalty  which  their  tes- 
timony, had  they  not  been  confuted,  would  inflict  on 
the  alleged  criminal.  ^^® 

mony  is  invalidated,  the  whole  is  invalidated"  (B.  Kama  73'*; 
Yer.  Maccoth  I,  §  16,  p.  31^). 

3'9  Sifre  II,  §  190;  Sanh.  89=^;  Maccoth  2%  5^.— Provided,  how- 
ever, that  their  testimony  was  in  other  vesjpects  valid,  and  suffi- 
cient to  convict  the  accused;  that  all  the  witnesses  were  duly 
confuted  (Maccoth  5^;  Maimon.  H.  Eduth  XX,  1.  Cf.  infra 
§  99) ;  and  that  the  confutation  took  place  in  their  presence; 
otherwise  it  will  amount  to  simple  disproval  (Keth.  20^;  Mai- 
mon. H.  Eduth  XVIII,  5),  Provided,  further,  that  confutation 
takes  place  before  the  intended  victim  of  their  falsehood  is  executed 
(Maccoth  5a ;  Maimon.  H.  Eduth  XX,  2). — The  last  proviso 
may  appear  paradoxical,  and  some  critics  do  indeed  ascribe  it 
to  "the  clemency  of  a  period  which,  removed  from  the  prac- 
tice of  penal  law,  still  moved  in  the  subtilties  of  theory" 
(Geiger,  Urschrift  p.  140,  n.  2). — But  on  close  contemplation 
of  the  spirit  of  Talmudic  jurisprudence,  one  may  readily  per- 
ceive that  this  proviso  is  a  necessary  consequence  of  the  Rab- 
binic system.— A  witness  is  not  allowed  to  recant  his  testimony 
after  the  court  has  cross-examined  him  (§91).  He  may  do  so 
only  as  long  as  the  court  needs  him,  but  not  after  it  is  done 
with  him  (Sifre  II,  §  190;  Yer.  Keth.  II,  §  3,  p.  26'^);  then  it 
requires  outside  testimony  to  reopen  the  evidence  of  that  wit- 
ness. And  why  this  ?  Evidently,  because  the  court  is  bound 
to  set  a  limit  to  the  liberties  of  witnesses,  in  order  to  preserve 
and  enforce  respect  for  its  own  authority.  J^ow,  with  the  exe- 
cution of  the  condemned,  the  whole  case  closes,  and  the  court 


DISPROVAL    AND    CONFUTATION.  137 

§  98.  When  two  parties  of  witnesses  disprove  each 
other,  though  the  testimony  of  both  parties  is  rejected 
and  the  case  affected  thereby  is  dismissed,  each  party^ 
or  each  individual  thereof,  may  still  be  trusted  in 
other  cases;  but  a  fusion  of  the  two  parties,  or  a 
combination  of  individuals  from  both,  must  never 
thereafter  appear  as  witnesses  on   the    same   side.^^" 

is  done  with  it  for  ever.  If  a  court,  after  the  execution  of  the 
convict,  were  to  try  the  testimony  on  which  he  has  been  con- 
victed, it  could  never  know  where  and  when  a  capital  case  would 
come  to  a  close,  or  how  many  victims  it  might  require  to  close  the 
case,  and  at  the  same  time  it  would  publish  its  own  incapacity, 
and  have  to  try  itself  for  a  judicial  murder!  Moreover,  the 
Talmudic  system  makes  the  prosecuting  witnesses  the  only 
legal  executioners  of  their  convict  (infra  §  121).  Now,  suppos- 
ing the  court  to  disregard  its  own  self-respect,  and  to  reopen 
the  case  after  the  execution  of  the  alleged  criminal,  and  the 
prosecuting  witnesses  to  be  confuted, — can  the  court  pass  a  sen- 
tence of  death  upon  them?  Their  crime  cannot  be  denomi- 
nated murder,  because  they  have  killed  their  victim  by  order 
of  the  court  (cf.  Horayoth  3^  Rashi  ad  1.) ;  it  may  be  a  species  of 
culpable  homicide,  for  which  the  death  penalty  is  not  inflicted 
(supra  §  37).  and  the  court  can  hence  not  award  them  punish- 
ment in  kind,  as  the  law  of  confutation  requires  (supra  §  97). 
On  the  other  hand,  if  they  are  duly  confuted  before  the  execution, 
but  after  the  sentence  of  their  victim,  they  are  proved  guilty 
of  a  gross  attempt  at  misleading  the  court,  and  of  malicious 
intent  with  regard  to  the  prisoner,  in  reference  to  which  the 
Bible  says:  Ye  shall  do  unto  the  false  witness  as  he  intended  to 
do  to  his  brother  (Deut.  XIX,  19).  The  witness  intends  to  kill 
an  innocent  man;  prevent  him  from  carrying  out  his  felonious 
intention  by  killing  him  :  the  Biblical  injunction  is  his  death- 
warrant,  and  on  the  part  of  the  court  it  will  be  a  case  of  justi- 
fiable homicide, 

3*^  B.  Bathra  31b;  Sheb.  37^.  Individually  the  parties  are  not 
disqualified,  because,  though  one  of  the  tAvo  is  certainly  unreli- 


138  THE    TRIAL. 

The  confuted  witness,  on  the  other  hand,  is  not  only 
for  ever  after  debarred  from  appearing  as  a  witness  in 
any  case,^^^  but  also  all  evidence  given  by  him  since 
his  participation  in  the  case  on  which  he  is  confuted, 
is  distrusted  and  invalidated,^^^  while  he  himself  suf- 
fers the  very  injury  he  had  intended  to  inflict  on  his 
fellow-man.  ^^' 

able  the  court  has  no  certain  grounds  on  which  to  convict 
either;  but  jointly  they  must  not  appear  as  witnesses,  because 
each  represents  the  other  as  false,  and  by  associating  with  that 
other  he  renders  himself  incompetent  (cf.  supra  n.  273). 

321  Tosefta  Maccoth  I,  §11;  Sanh.  27^— Akin  to  this  is  the 
Attic  law  which,  in  case  the  prosecutor  fails  to  obtain  at  least 
one-fifth  of  the  votes  in  favor  of  his  accusation,  imposes  on 
him,  in  addition  to  a  fine  of  1000  Drachmae,  an  atimia  which 
debars  him  from  ever  thereafter  appearing  as  prosecutor  in  a 
case  of  the  same  nature  as  that  in  which  he  has  been  defeated 
(Smith  537"). 

322  B.  Kama  72b;  Sanh.  27-''. — This  exemplifies  the  maxim  of 
modern  law :  Falsus  in  imo,  falsus  in  omnibus.  (False  in  one 
thing,  false  in  everything). 

323  Of,  n.  318. — There  are,  howevea.',  cases  in  which  the  sentence 
passed  on  the  victim  of  false  testimony,  is  not  executed  on  the 
confuted  witness,  but  is  substituted  by  flagellation.  These  are : 
A  false  charge  of  corruption  of  Levitical  blood — as  that  of 
being  the  son  of  a  marriage  between  a  priest  and  a  divorced 
woman  (cf.  Lev.  XXI,  13-15),  or  a  Halutzah  (a  widow  who 
has  loosed  the  shoe  of  her  brother-in-law, -cf.  Deut.  XXV, 
7-10) — is  preferred  against  a  priest,  which  would  disqualify 
him  and  his  descendants  from  officiating  in  the  Temple.  In 
this  case,  if  the  intended  injury  were  inflicted  on  the  confuted 
witness,  his  innocent  children  would  necessarily  share  the  in- 
famy with  him,  and  that  is  against  the  law  (cf.  §  133,  n.  401). 
Again,  confuted  witnesses  escape  their  appropriate  punishment, 
when  they  have  falsely  testified  against  a  person  that  he  has 
committed  accidental  homicide,  and  that  he  is  consequently 


DISPROVAL   AND   CONFUTATION.  139 

§  99.  Witnesses  are  not  subject  to  the  penalty  of 
confutation,  unless  all  of  them  are  duly  confuted. 
But  when  an  interval,  longer  than  necessary,  has 
elapsed  between  the  hearing  of  one  portion  of  them 
and  the  beginning  of  that  of  the  other,  only  those 
suffer  the  penalty  who  have  been  the  direct  subjects 
of  confutation,  Avhile  the  rest  are  exempt  from  it,^^* 
although  the  testimony  of  all  is  rejected,  if  a  single 
one  of  the  whole  party  is  confuted.  ^^ 


subject  to  exile  (§  23);  br  when  they  accuse  one  of  having 
escaped  from  penal  servitude  (§22);  or  when  they  accuse  him 
of  being  under  sentence  to  pay  a  fine  for  a  homicide  committed 
by  one  of  his  animals  (n.  129). — Xeither  is  the  witness  who  is 
confuted  in  a  case  of  adultery  against  a  priest's  daughter,  pun- 
ishable as  she  would  be,  had  the  charge  been  sustained — b}' 
burning  (supra  §  27).  He  is  punished,  as  the  adulterer,  by 
strangulation  (Maccoth2^  Cf.  supra  §29).  Nor  is  posthumous 
hanging  superadded  to  the  penalty  of  stoning,  when  the  wit- 
ness is  confuted  in  a  matter  of  idolatry  or  of  blasphemy  (cf. 
infra  §  130). 

324Maccoth  5>^s(i.;  Maimon.  H.  Eduth  XX,  8.— With  refer- 
ence to  disproval  or  to  confutation,  the  law  does  not  follow 
majorities,  but  the  order  of  succession.  The  last  party  is  the 
victorious  party.  Therefore  even  if  the  first  party  of  witnesses 
numbers  vastly  more  than  the  second,  the  second  is  still  pre- 
ferred, and  confutes  or  disproves  the  testimony  of  the  greater 
number  (Maccoth  1.  c;  Maimon.  1.  c.  XVIII,  3.  Cf.  Sanh. 
27'').  If  a  third  party  thereupon  appears  and  disproves  or  con- 
futes the  second,  the  second  stands  convicted,  while  the  first  is 
vindicated ;  and  so  one  party  may  succeed  another  in  endless 
rotation,  and  the  court  is  bound  to  believe  the  last  and,  with 
it,  its  predecessors  whose  evidence  its  testimony  corroborates 
(Maccoth  5*;  Maimon.  1.  c.  XX,  6).  The  principle  underlying 
this  rule  is  akin  to  to  that  underlying  the  Roman  maxim : 
Ponderantur  testes  non  nwnerantur  (Witnesses  are  weighed,  not 
counted).  325  cf,  supra  n.  318. 


140  THE    TRIAL. 


8.  The  Deliberations. 

§  100.  Only  the  finding  of  the  court  in  the  prisoner's 
favor  disposes  of  the  case  on  the  day  of  the  examina- 
tion. Therefore  if,  after  hearing  both  sides,  the  court 
finds  the  delation  not  fully  sustained,  the  prisoner  is  at 
once  set  at  liberty;  but  if  he  cannot  be  acquitted  imme- 
diately, the  case  is  adjourned  to  the  next  day,^^*^  and 
the  court  meanwhile  enters  on  deliberation.^^ 

32'  Sanh.  32%  34*;  et  al. — The  object  of  this  postponement  iS, 
to  allow  the  first  impression  made  on  the  judges  to  Avear  ofi", 
and  to  afford  reason  time  to  see  clearly  the  path  of  justice, 
which  might  lead  to  an  acquittal  (cf.  supra  n.  255).  The  only 
crime  not  allowed  this  advantage  is  instigation  to  idolatry 
( §  26).  In  this  case  no  postponement  is  granted,  for  no  mercy 
may  be  shown  (Tosefta  Sanh.  X,  11.  Cf.  supra  n,  37;  infra  n, 
333). 

^  Sanh.  40*;  Maimon.  H.  Sanh.  XII,  3.— The  court  is  the 
representative  neither  of  the  state  nor  of  the  prisoner,  but  of 
the  majesty  of  justice  which  represents  both  the  state  and  the 
prisonejr;  and  justice  being  blind  and  impartial,  no  counsel  or 
advocate  is  allowed  to  either  side  (Mekhilta  Ivaspa,  §20.  Cf. 
Meir  Ayin  a.  1.), — the  Eabbis  basing  this  iDrohibition  on  the 
Scriptural  dictum  (Ex.  XXII,  8):  "Before  the  judges  shall 
come  the  tvord  of  both  parties),''''  but  not  of  counsel  who,  by 
their  plausible  argumentations,  might  mystify  the  judges  and 
cause  them  to  stray  from  justice. — If  the  legal  fraternity  of 
to-day  find  this  low  estimate  of  their  usefulness  strange  and  un- 
warranted, let  them  look  back  to  the  Talmudic  age,  when  the 
synegoroi  and  advocati  flourished  in  Greece  and  Rome,  and  per- 
verted judgment  in  both  countries.  Xor  was  this  idea  confined 
to  the  Rabbis.  When  King  Ferdinand,  a  thousand  years  after 
the  close  of  the  Talmud,  sent  out  colonies  to  the  Indies,  he  pro- 
vided that  no  lawyers  should  be  carried  along,  lest  law-suits 
should  become  ordinary  occurrences  in  the  new  world,  and  he 


THE    DELIBERATIONS.  141 

§  101.  The  deliberations  must  be  opened  with  an 
argument  for  the  defense/^^  and  by  one  of  the  younger 
judges. ^^^  A  simultaneous  and  unanimous  verdict  of 
guilty  rendered  on  the  day  of  trial  has  the  effect  of 
nn  acquittal.^'' 

§  102.  Probationers  are  allowed  to  participate  in 
the  deliberations^  provided  they  incline  to  the  side  of 

evidently  judged  with  Plato  that  lawyers  are  the  pests  of  the 
country!  (Cf.  Montaigne,  Essays  III,  c.  XIII). — But  what- 
ever the  Eabbinic  opinion  be  of  so  important  an  institution  as 
counsel  avowedly  is,  the  procedure  of  Eabbinic  jurisprudence 
is  certainly  more  consonant  with  justice,  and  therefore  with 
the  welfare  of  society,  than  was  the  civil  law,  and  after  it  the 
law  of  England,  which  in  capital  cases  allowed  counsel  to  the 
prosecution,  but  not  to  the  defense  (cf.  Blackstone  IV,  359 ; 
supra  n.  309). 

32sSifre  I,  §  12;  Sanh.  32%  40^. 

'»  Sanh.  32%  36^;  Maimon.  H.  Sanh.  XI,  6.  Lest  the  chief, 
or  any  of  the  seniors  having  given  his  opinion,  the  juniors 
might  be  tempted  to  acquiesce,  if  only  out  of  respect  for  seniority 
(Tosefta  Sanh.  VII,  §  2.     Cf.  Eashi  Sanh.  32^  s.  v.  3Iin  Hatzad). 

^"Sanh.  17^;  Maimon.  H.  Sanh.  IX,  1. — Contrary  to  reason 
as  this  rule  may  appear,  it  is  founded  on  Eabbinic  humanity 
and  as  a  necessary  consequence  of  Eabbinic  law.  We  have 
just  seen  that,  for  very  good  reasons  (n.  32G),  a  verdict  of  guilty 
must  not  be  rendered  on  the  day  of  examination;  but  where 
all  suddenly  agree  on  conviction,  does  it  not  seem  that  the  con- 
vict is  a  victim  of  conspiracy,  and  that  the  verdict  is  not  the 
result  of  sober  reason  and  calm  deliberation  ?  In  such  a  case 
it  is  hardly  probable  that,  even  after  the  interval  of  the  required 
adjournment,  the  court  will  endeavor  to  find  reason  for  mitiga- 
tion. All  the  judges  give  up  the  prisoner  as  lost,  and  there  will 
be  not  even  one  to  plead  his  cause,  as  the  law  provides  there 
should  be  (Sanh,  29a);  and  as  every  irregularity  in  the  proceed- 
ings operates  in  favor  of  the  prisoner,  he  is,  in  the  case  before 
us,  set  at  liberty. 


142  THE   TRIAL. 

the  accused.  If  any  one  of  them  rises  to  speak  for 
the  prosecution,  he  is  at  once  silenced.  ^^ 

§  103.  Witnesses  are  precluded  from  arguing  on 
the  case  to  which  they  have  testified,  even  when  they 
would  argue  in  favor  of  the  accused  ;^^  while  the 
defendant  himself  may  argue  in  his  own  behalf,  and 
when  he  does  not  avail  himself  of  this  privilege, 
others  must  do  it  for  him.^^ 

§  104.  The  judge  who  is  vacillating  in  his  opinion 
needs  give  no  reason  for  his  indecision  ;^^  but  those 
who  express  decided  opinions,  must  furnish  the  grounds 
for  their  opinions,^  which  the  secretaries  carefully 
enter  on  record. ^^ 

33'  Sanh.  40a;  Maimon.  H.  Sanh.  X,  8.  The  probationer 
advances  to  the  judicial  bench,  whence  he  delivers  his  argu- 
ment. If  his  argument  proves  untenable,  he  remains  among 
the  judges  for  the  rest  of  that  day  only ;  but  if  it  is  clever,  and 
serves  to  save  the  life  of  the  prisoner,  he  remains  there  for  ever 
after  as  an  active  member  of  the  court  (Tosefta  Sanh.  IX,  §  3; 
Sanh.  42=1). 

332  Sanh.  33b,  40*;  Maimon.  H.  Eduth  V,  8.  For  their  argu- 
ments would  affect  their  own  testimony  (Sanh.  34"),  which 
must  not  be  reopened  by  themselves  after  the  cross-examina- 
tion (supra  §  91,  n.  307). 

333  Sanh.  29^;  Maimon.  H.  Sanh.  XI,  5.  Except  for  the  insti- 
gator to  idolatry  (cf.  n.  37). 

3M  Sanh.  17a;  Maimon.  H.  Sanh.  VIII,  3.  Cf.  infra  §  107,  n. 
344. 

335  Sanh.  34*;  Maimon.  H.  Sanh.  X,  1. 

33S  Sanh.  34%  36^,  et  al.;  Maimon.  H.  Sanh.  XII.  3.  Cf. 
supra  n.  201.— The  object  of  recording  the  arguments  will 
appear  presently  (§§  106,  107). 


THE    VERDICT.  143 


9.  The  Verdict. 

§  105.    The  members  of  the  court  vote  viva  voce,^ 
and  the  majority  of  votes  determines  the  verdict.     A 
majority  of  one  is  sufficient  for  acquittal,  but  it  re- 
quires a  majority  of  at  least  two  for  conviction. ^^ 

33'  Sanh.  34a,  40".  The  only  exception  is  the  mishap  stated  in 
§  107.— In  Athens  the  judges  gave  then-  decision  by  means  of 
white  or  black  pebbles :  the  former  for  acquittal,  and  the  latter 
for  conviction.  As  the  court  always  sat  in  the  dark  (supra  n. 
219),  the  Avhite  pebbles  were  distinguished  by  holes  bored  into 
them.  Two  urns  were  used  :  one  of  Avood  to  receive  the  white 
votes,  and  the  other  of  brass  to  receive  the  black  ones  (Fiske 
III,  §  108;  Smith  770^). 

=^^^  Sanh.  2%  32^;  et  al.  Thus :  if  the  Lesser  Synhedrion  (§  53) 
is  divided  on  a  question,  eleven  members  being  in  favor  of  con- 
viction and  twelve  of  acquittal,  the  prisoner  is  at  once  pro- 
nounced* not  guilty  and  set  at  liberty;  but  when,  per  contra, 
eleven  are  in  favor  of  acquittal  and  twelve  of  conviction,  there 
can  be  no  effective  verdict,  and  recourse  must  be  had  to  the  pro- 
bationers (§  109),  for  it  requires  a  majority  equal  at  least  to  the 
legal  number  of  witnesses  competent  to  convict  (Tosefta  Sanh. 
Ill,  §  7;  Mekhilta  Kaspa,  §  20).— The  French  law  was  the  same 
in  this  particular,  and  Montesquieu  (B.  XII,  c.  Ill)  warmly 
commends  it.  He  says,  "The  Greeks  and  Romans  required 
one  voice  more  to  condemn,  but  the  French  law  insists  upon 
two.  The  Greeks  pretended  that  their  custom  was  established 
by  the  gods  ;  but  this  more  justly  may  be  said  of  ours."  While 
the  learned  annotator  to  Blackstone  (III,  376,  n.  37)  strongly 
favors  the  rule  that  a  presentment  or  conviction  should  not  be 
effective  unless  approved  by  at  least  twelve  men,  he  is  strongly 
opposed  to  the  unanimity  required  of  a  jury.  He  is  of  opinion 
that  the  unanimity  of  twelve  men,  so  repugnant  to  all  experi- 
ence of  human  conduct,  passions  and  understandings,  could 
hardly  in  any  age  have  been  introduced  into  practice  by  a  delib- 
erate act  of  the  legislature." 


144  THE    TRIAL. 

§  106.  In  counting  the  votes  the  following  particu- 
lars must  be  observed.  When  the  records  show  that 
more  judges  than  one  have  advanced  one  and  the  same 
argument,  though  each  supported  it  by  different 
Scriptural  dicta, ^^^  their  opinions  are  considered 
together  as  one.^*°  Father  and  son,  teacher  and 
pupil,^*^  count  also  as  one.^*^ 

§  107.  If,  after  having  advanced  a  tenable  argument 
for  acquittal,  the  probationer  becomes  suddenly  dis- 
abled from  further  participation  in  the  debate,  the 
records  speak  for  him,  and  his  recorded  opinion  counts 
a  vote  in  the  prisoner's  favor  ;  ^*^  while  the  judge  who 

339  Cf.  fsupra  n.  33. 

="«  Toisefta  Sanh.  Ill,  §  8 ;  Sanh.  34a.  Yov  the  Rabbis  argue 
that  the  Bible  is  too  concise  to  contain  clear  statutes  on  all  pos- 
sible cases  (cf.  Berakhoth  5^ ;  Sanh.  87^ ;  Yer.  ib.  IV,  §  2,  p.  22" 
bot.),  but  that  it  is  a  kind  of  mnemotechnic  index  rerum  to  the 
vast  system  of  divine  laws  which  are  detailed  in  the  Rabbinic 
literature  (cf.  Yer.  Berakhoth  I,  §  7,  p.  3**  bot.  et  al);  and  while 
each  of  its  expressions  is  therefore  a  firm  basis  to  at  least  one 
law,  no  two  of  them  refer  to  one  and  the  same  thing  under  like 
circumstances  (Erubin  21'';  Sanh.  34%  etal.). 

*"  As  stated  above  (n.  210)  father  and  son  are  not  eligible  in 
one  and  the  same  court ;  our  case  can  therefore  happen  only 
when  the  one  is  a  member  of  the  court  and  the  other  a  partici- 
pating probationer  (cf.  §§102,  108).  As  to  teacher  and  pupil, 
they  are  not  allowed  to  sit  on  the  same  bench,  as  long  as  the 
pupil  actually  requires  the  teacher's  assistance,  and  are  there- 
fore counted  as  one  ;  otherwise  the  pupil  is  counted  as  an  inde- 
pendent person  (Sanh.  36'';  Maimon  H.  Sanh.  XI,  7). 

**2Sanh.  36"^;  Maimon  H.  Sanh.  XI,  7.  But  this  is  the  rule 
when  their  opinions  support  the  same  side,  not  when  they 
disagree  (cf.  Tosefta  Sanh.  II,  §  1). 

*»  Sanh.  34";  Maimon  H.  Sanh.  X,  3.  If,  however,  the  mis- 
hap occurs  before  he  has  duly  established  his  opinion,  though 


THE    VERDICT.  14'5 

is  undecided  and  wavering  is  considered  as  absent, 
and  therefore  not  counted.^" 

§  108.  When  the  court  is  so  divided  that  no  eiFec- 
tive  verdict  for  acquittal  can  be  given  on  that  day,  it 
adjourns  to  the  next  day.  In  the  meanwhile  the 
judges  may  partake  of  food,  but  must  drink  no 
wine  whatever.  They  may  retire  from  the  court-room, 
but  not  to  rest.  In  the  privacy  of  their  closets  they 
must,  either  by  themselves  or  with  some  colleagues, 
continue  to  study  the  questions  at  issue.  Early  the 
next  morning  they  must  again  be  in  their  seats  at  the 
place  of  meeting,  and  proceed,  in  the  manner  de- 
scribed, to  dispose  of  the  case.^     In  rearguing   the 

he  may  have  expressed  himself  as  favoring  acquittal,  his  opin- 
ion does  not  count  (Sanh.  43'* ;  Mairaon.  1.  c.  4). 

3«  Sanh.  40'' ;  Maimon  H.  Sanh.  IX,  2.  Even  if  he  states  his 
reasons  for  vacillating,  giving  arguments  pro  and  con,  which  he 
is  not  required  to  do  {§  104),  he  cannot  be  considered  as  present, 
so  long  as  he  is  undecided  about  the  verdict  (Sanh.  17^;  Maimon. 
1.  c.  VIII,  2  et  al.  Cf.  infra  n.  348),— In  Rome  the  judices 
voted  by  ballot.  Each  one  was  provided  with  three  tablets,  on 
one  of  which  was  marked  A=x\bsolvo;  on  the  second,  C=Co»- 
demno;  and  on  the  third,  J^.  L.=Non  liquet,  and  a  majority  of 
these  ballots  determined  the  condemnation  or  acquittal  of  the 
accused  (Smith  552''). 

^  Tosefta  Sanh.  IX,  §  1 ;  Sanh.  40^  All  the  arguments  must 
be  restated.  If  any  one  who  has  spoken  in  favor  of  acquittal 
becomes  confused,  the  secretaries  extricate  him  by  means 
of  the  records ;  but  if  he  is  one  who  has  argued  in  favor  of  con- 
viction, no  such  assistance  is  rendered  him.  He  is  left  to  extri- 
cate himself  as  best  he  can  (Tosefta  1.  c. ;  Yer.  Sanh.  V,  end,  p. 
23^*  top) ;  and  when  it  is  proved  by  the  records  that  he  now 
argues  from  a  different  standpoint,  though  still  on  the  side  of 
conviction,  the  case  must  be  adjourned  for  another  day  (Sanh. 

10 


146  THE   TRIAL. 

points,  any  one  wlio  has  previously  expressed  himself 
as  favoring  conviction,  but  subsequently  changes  his 
opinion,  may  state  his  reasons  for  the  changes  ;  but 
he  who  has  spoken  in  favor  of  acquittal,  if  he  changes 
his  opinion,  is  not  allowed  to  give  his  reasons. ^^ 

§  109.  When,  on  recounting  the  votes,  it  appears 
that  no  effective  verdict  can  be  found  by  the  acting 
judges,  their  number  is  increased  or  supplemented  by 
two  probationers.^*^     If  these   do  not  reach    a  deci- 

34»,  Cf.  Yer.  1.  c). — During  the  thousand  years  following  the 
close  of  the  Talmud,  which  contains  hundreds  of  such  humane 
laws,  the  world  branded  the  Rabbinic  system  of  laws  as  barba- 
rous and  inhuman,  at  a  time  when  the  English  courts  did  not 
sufter  the  prisoner  accused  of  a  caijital  crime,  to  exculpate  him- 
self by  the  help  of  witnesses  (supra  n.  309).  How  consistent 
and  just! 

^  Sanh.  34^  40^^.  But  he  must  vote  with  those  whom  he  con- 
scientiously believes  to  be  in  the  right. 

3«  Sanh.  17%  40^ ;  Maimon  II.  Sanh.  IX,  2.  When  the  opin- 
ions of  the  members  of  the  court  are  so  divided  as  to  constitute 
a  majority  for  conviction,  but  that  majority  consists  of  one  vote 
only  (supra  §  105),  the  court  is  simply  increased  by  the  addition 
of  two  supernumeraries ;  but  when  one  of  the  original  twenty- 
three  judges  is  not  clear  on  the  question  and,  therefore,  unde- 
cided as  to  the  verdict  (supra  n.  344),  though  all  the  others  are 
of  one  and  the  same  opinion,  there  is  a  virtual  deficiency  in  the 
required  number  of  judges,  wherefore  the  court  must  be  supple- 
mented,— As  to  the  time  at  which  this  process  is  resorted  to, 
it  might  appear,  from  Sanh.  40%  to  be  the  second  day  after  the 
formal  examination,  and  Eashi  (ad.  1.  c.)  so  interprets  that  pas- 
sage; but,  from  Tosefta  Sanh.  IX,  §  1,  and  Sanh.  35%  it  clearly 
appears  to  be  the  day  immediately  following  that  on  which  the 
examination  closed,  and  Maimonides  (1.  c.)  so  understood  it. — 
By  the  old  English  law,  a  verdict  by  the  grand  assize  had  to  be 
approved  of  by  at  least  twelve  members ;  and  if  twelve  did  not 


THE    VERDICT.  147 

sion,^°  the  process  of  increasing  or  supplementing  is 
again  resorted  to,  and  this  is,  under  similar  circum- 
stances, repeated  either  until  a  decisive  majority  is 
secured,  or  until  there  are  on  the  bench  as  many 
judges  as  constitute  the  Great  Synhedrion — seventy- 
one.^^ 

§  110.  If  after  reaching  the  number  of  seventy-one, 
the  court  continues  unable  to  find  an  effective  ver- 
dict,^ the  entire  court  remains  in  session  and  con- 
tinues to  discuss  the  points  of  variance,  until  one  of 
the  participants  changes  his  opinion,  when  the  ver- 

agree,  the  assize  was  afforcecl,  i.  e,  others  were  addecl  till  twelve 
did  concur  (Blackstone  III,  376,  n.  37). 

**-  This  may  happen  either  when  the  supernumeraries  are 
divided  on  the  question,  thus  making  thirteen  for  conviction 
and  twelve  for  acquittal ;  or  when  the  court  stands  eleven  to 
eleven,  with  one  undecided,  and  the  suppletories  are  divided, 
thus  making  twelve  against  twelve.  On  the  other  hand,  when 
the  original  court  stands  twelve  for  conviction  and  eleven  for 
acquittal,  or  eleven  to  eleven  with  one  undecided,  and  the  super- 
numeraries vote  together  for  conviction ;  or  when  the  court 
stands  twelve  to  eleven,  and  the  supernumeraries  are  divided, 
one  voting  with  the  twelve  for  conviction,  and  the  other  being 
undecided  and  not  voting  at  all,  the  verdict  of  the  majority 
holds  good.  But  when  the  original  twenty-three  are  divided, 
there  being  twelve  on  one  side  and  eleven  on  the  other,  and  one 
of  the  supernumeraries  votes  with  the  minority  for  acquittal, 
and  the  other  does  not  vote  at  all,  thus  causing  a  tie  of  twelve 
against  twelve,  the  prisoner  is  acquitted  (Sanh.  17» ;  Maimon. 
ib.  IX,  2).— By  Grecian  law,  too,  an  equal  division  of  votes  was 
equivalent  to  an  acquittal  (Smith  770*). 

3«Sanh.  40^  Maimon.  H.  Sanh.  IX,  2.  The  Great  Synhe- 
drion itself  was  not  to  be  increased  under  any  circumstances 
(Sanh.  42a;  Maimon  1.  c,  3). 

^  For  reasons  stated  in  notes  347  and  348. 


148  THE   TRIAL. 

diet  is  carried  by  the  requisite  majority.^"  But  if 
after  a  long  and  thorough  discussion,  the  requisite 
majority  cannot  be  secured,  each  side  remaining  firm 
in  its  convictions  and  unchangeable  in  its  opinions, 
the  chief  of  the  court  declares  the  case  ''drawn,"  and 
the  prisoner  is  discharged. ^^^ 

§  111.  When  a  verdict  is  arrived  at,  the  accused  is 
brought  before  the  bar,^^  and  the  chief  of  the  court 
declares  it.  •  If  that  verdict  is  in  the  prisoner's  favor, 
acquitting  him  of  the  charge,  he  is  at   once   liber- 

331  Sanh.  40* ;  Maimon.  H.  Sanh.  IX,  2. — In  such  cases  the  de- 
fense has  great  advantages,  and  a  verdict  of  guilty  is  hardly  any 
longer  probable;  for  the  party  that  has  once  spoken  for  the  de- 
fense, if  he  changes  his  opinion,  is  not  allowed  to  speak  for  the 
prosecution,  or  even  to  state  his  reasons  for  the  change  (§  108), 
while  the  deserter  from  the  ranks  of  the  prosecution  is  allowed 
to  state  his  reasons  for  the  change,  and,  speaking  now  for  the 
defense,  he  may  carry  others  with  him,  by  convincing  them  of 
the  guiltlessness  of  the  accused  or  of  some  irregularity  in  the 
trial,  which  makes  a  conviction  illegal  (Sanh.  17^;  Maimon.  1. 
c. ).  Another  advantage  of  the  accused  is  the  rule  debarring  the 
party  who  has  expressed  himself  as  being  undecided,  from  vot- 
ing with  the  convicting  side,  even  after  he  is  convinced  that  con- 
viction is  in  consonance  with  justice  (1.  c),  because  the  post- 
ponement of  the  verdict  is  intended  to  produce  results  favorable 
to  the  accused  (supra  n.  326),  and  is  not  allowed  to  cause  him 
injury. 

^52  Sanh.  42a  ;  Maimon,  H.  Sanh.  IX,  2. — In  Eome  also  it  was 
the  duty  of  the  presiding  magistrates  to  pronounce  the  sentence 
of  the  judices ;  in  the  case  of  condemnation,  to  adjudge  the  legal 
penalty  ;  of  acquittal,  to  declare  him  acquitted ;  and  of  doubt, 
to  declare  that  the  matter  must  be  further  investigated  (Smith 
r.52t'). 

3^3  Sanh.  79" ;  Maimon.  H.  Rozeah  IV,  7 ;  H.  Sanh.  XIV,  7. 


THE    VERDICT.  149 

ated  ;  ^  if,  on  the  contrary,  he  is  found  guilty,  then 
he  is  straightway  led  forth  to  execution.^* 

354  Sanh.  40* ;  Maimon.  H.  Sanh.  XII,  3. 

^  Sanh.  42''  sq.  Cf.  supra,  §  74,  n.  254.  The  Zakeii  Mamre 
is  an  exception  to  this  rule  (cf.  supra  n.  255). — As  the  Talmud, 
like  the  civil  and  common  law  (cf.  Roscoe  575),  considers  the  em- 
bryo in  the  womb  pars  viscerum  matris  (Sanh.  80^,  et  al.)  and, 
therefore,  as  not  having  individual  existence,  a  pregnant  woman 
is  not  reprieved ;  but  the  embryo  is  first  killed  within  her,  and 
then  she  is  executed.  When,  however,  the  woman  is  about  to  be 
delivered,  a  respite  is  allowed  (Arakhin  7*;  Maimon.  1.  c..4i. — 
Blackstone  (IV,  395)  speaks  of  a  case  on  the  island  of  Guernsey, 
where  a  woman  big  with  child  was  burned  ;  and  when,  through 
the  violence  of  the  flame,  the  infant  sprang  forth  at  the  stake, 
and  was  preserved  by  the  bj'-standers,  the  priests  who  assisted 
at  the  sacrifice,  after  some  deliberation,  cast  it  back  into  the 
fire  as  a  3'oung  heretic. — As  to  the  interval  between  the  sentence 
and  the  execution,  there  formerly  was  a  law  in  England,  pre- 
scribing that  the  judge,  before  whom  an}-  person  is  found  guilty 
of  wilful  murder,  shall  pronounce  sentence  immediately  after 
conviction,  unless  he  sees  cause  to  postpone  it ;  and  shall,  in 
passing  sentence,  direct  the  convict  to  be  executed  on  the  next  day 
but  one;  and  that  during  this  short  but  awful  interval  between  the 
sentence  and  the  execution,  he  shall  be  kept  isolated  and  sus- 
tained with  bread  and  water  (ib.  202). — By  Rabbinic  law  the  ver- 
dict implies  the  sentence,  since  nothing  is  left  to  the  discretion  of 
the  court ;  the  punishment  for  every  crime  being  prescribed  by 
.statute  (supra  §§  21-29).  Fines  and  flagellations  are  exceptions, 
but  only  as  to  the  amount  of  money  (supra  n.  148)  and  the  num- 
ber of  stripes  (infra  n.  421).  And  if  the  great  commentator 
(1.  c.  377  sq.)  claims  it  as  "one  of  the  glories  of  our  English 
law,  that  the  species,  though  not  always  the  quantity  or  degree 
of  punishment  is  ascertained  for  every  offense,  "  what  glory 
might  not  the  Rabbinic  system  claim,  which  ascertains  the  de- 
greeas  well  as  the  species  of  punishment  (cf  n.  23) !  Xor  were 
Grecian  courts  invested  with  discretionary  powers  in  awarding 


150  THE    TRIAL. 

§  112.  All  the  participants  in  the  debate  are  strictly 
enjoined  not  to  divulge  the  opinions  of  the  different 
members  of  the  court,  nor  the  names  of  those  who 
voted  for  or  against  the  accused.^ 

§  113.  On  the  day  on  which  a  human  being  is  con- 
demned by  their  verdict  to  capital  punishment,  the 
judges  are  not  allowed  to  partake  of  any  food  or 
drink.  ^' 

10.  Reversal  of  Judgment. 

§  114.  A  verdict  of  conviction  may  be  reversed  by 
the  trial  court,  but  a  verdict  of  acquittal  can,  under 
no  circumstances,  be  reversed.  ^^ 

punishment,  for  also  in  Greece  the  law  determined  the  punish- 
ment according  to  the  natvxre  of  the  crime  (Smith  770*). 
•  356  Sifra  Kedoshim  §  4 ;  Sanh.  29^  The  Talmud  (Sanh.  31») 
records  the  instance  of  one  who,  having  been  found  guilty  of  a 
violation  of  this  rule  decades  after  the  occurrence,  was  expelled 
from  the  court-house  as  a  slanderer. 

3*'  Sifra  Kedoshim,  §  6 ;  Sanh.  63*.  If  the  trial  takes  place  on 
a  half  holiday,  when  fasting  is  not  allowed,  the  verdict  is  not 
pronounced  till  near  sunset,  and  the  execution  takes  place  im- 
mediately thereafter  (Moed  Katon  14'^). — A  Spanish  nobleman 
resented  an  insult  offered  him  by  a  guardsman  of  Sixtus  V. 
Without  any  such  intention  on  the  part  of  the  nobleman,  the 
recounter  resulted  fatally  for  the  guard,  and  the  Pope  ordered 
the  unfortunate  homicide  to  be  whipped  to  death.  This  barba- 
rous execution  took  place  under  the  windows  of  the  papal  resi- 
dence and  was  witnessed  by  the  Pope.  As  soon  as  life  became 
extinct,  Sixtus  ordered  in  his  dinner,  gleefully  adding:  "  This  act 
of  justice  has  given  me  an  excellent  appetite  !  " — Was  he  gov- 
erned in  this  procedure  by  the  "inhuman  laws"  of  theKabbis?! 
3*'  Sifre  II,  §144  ;  Sanh.  32\  Though  the  trial  was  conducted, 
and  the  verdict  of  guilty  arrived  at,  in  obedience  to  all  the  rules 


REVERSAL    OF    JUDGMENT.  151 

§  115.  If  a  convict  who  has  escaped  from  one  court 
is  brought  before  another,  the  latter  is  not  competent 
to  review  his  case,  but  must  see  that  the  judgment  of 
the  trial  court  be  carried  out,  provided  the  original 
witnesses  or  prosecutors  are  present.^'     But  if  the 


of  Eabbinic  judicial  procedure,  if  sufficiently  new  evidence  in 
favor  of  the  convict  is  found  (cf.  infra  §  119),  or  if  the  verdict  is 
discovered  to  rest  on  a  mistake  of  law,  or  if  even  the  convict 
himself  declares  that  be  has  something  to  say  in  his  own  favor 
(§  120),  the  court  is  bound  to  reopen  the  case,  and  afiord  the 
convict  a  chance  for  vindication  and  deliverance.  But  when, 
on  the  contrary,  the  party  stood  his  trial  and  was  found  not 
guilty,  he  must  not  again  be  brought  in  jeopardy  for  the  same 
oftense,  though  his  guilt  might  now  be  established  on  new  and 
conclusive  evidence.  And  even  when  the  judges  themselves  dis- 
cover that  their  verdict  of  acquittal  was  founded  on  a  mistake  of 
law,  that  verdict  cannot  be  revoked,— This  rule  is  founded  on 
the  Biblical  injunction  :  -'The  innocent  and  the  righteous  slay 
not"  (Exodus  kxill,  7),  which  the  Rabbis  construe  thus  :  The 
innocent,  though  found  guilty,  and  the  one  found  righteous, 
though  really  guilty,  slay  not  (Mekhilta  Kaspa,  §  20;  Sanh.  33b). 
— An  exception  to  this  rule  is  the  instigator  to  idolatry.  If  he 
is  once  adjudged  guilty,  he  is  executed ;  and  if  declared  inno- 
cent, he  must  be  retried  and  convicted,  when  new  evidence  is 
discovered  sufficient  to  convict  him  (Sifre  II,  §  89 ;  Sanh.  33". 
Cf.  supra  n.  326). 

3S9  Maccoth  7* ;  Maimon.  H.  Sanh.  XII,  7.  Where  the  fugi- 
tive from  justice  is  a  convict  for  murder,  any  two  witnesses  of 
the  declaration  of  the  condemnatory  verdict  are  competent  to 
compass  his  execution  at  the  instance  of  any  court  (Maimon.  1. 
c.  Cf.  Sanh.  45'^).— By  Athenian  law,  a  convicted  murderer, 
if  found  within  the  limits  of  the  state,  might  be  seized  and  put 
to  death ;  and  whoever  harbored  or  entertained  any  one  who 
had  fled  from  his  country  to  avoid  capital  punishment,  was  liable 
to  the  same  penalties  as  the  fugitive  himself  (Smith  134").     But 


152  THE    TRIAL. 

conviction  took  place  before  a  foreign  court,  and  the 
escaped  convict  is  brought  before  a  Palestinean  tribu- 
nal,^^*'  the  verdict  of  the  foreign  court  is  set  aside,  and 
the  convict  is  granted  a  new  trial. ^^^ 

no  murderer,  even  if  he  escaped  after  conviction,  could  lawfully 
be  killed  or  even  arrested  in  a  foreign  country  (ib.  770''). 

**'  The  Palestinean  courts  were  considered  higher  than  those 
of  other  countries  (Maccoth  7%  et  al.). 

^'  Tosefta  Sanh.  Ill,  §  11 ;  Maccoth  7^ 


IV.    THE   EXECUTION. 
1.    Between  Life  and  Death. 

§  116.  Believing  that  the  interval  between  convic- 
tion and  execution  is  the  most  terrible  period  in  the 
life  of  the  convict,  the  Talmud  ordains  that  the  exe- 
cution take  place  before  sundown  ^^^  of  the  very  day 
on  which  the  verdict  is  pronounced.  ^^^ 

^  Sanh.  34b  gq..  Maimon.  H.  Sanh.  XV,  7. 

363Sanh.  32%  35*:  Maimon.  H.  Sanh.  XIII,  1.  Cf.  supra  § 
74,  n,  254. — As  the  execution  of  the  criminal  was  not  looked 
upon  by  the  Hebrews  as  a  retribution  for  his  crime,  nor  as 
making  amends  for  the  mischief  done ;  nor  yet  as  a  vindication 
of  the  majesty  of  the  law,  or  as  satisfying  the  abstract  demands 
of  justice; — as,  in  short,  the  great  aim  of  penal  justice  was  to 
warn  the  future  rather  than  to  avenge  the  past  (supra  n.  184), 
and  as  death  generally  is  considered  by  the  Rabbis  as  an  expia- 
tion for  misdeeds  (cf.  Yoma  85):  the  Rabbinic  law  did  not  per- 
mit a  spirit  of  vengeance  or  of  retaliation  to  embitter  the  last 
hours  of  the  convict.  On  the  contrary,  strict  as  was  the  law, 
and  vigilant  as  were  its  guardians,  every  possible  consideration 
Avas  bestowed  upon  the  unfortunate  victim  of  folly,  which 
the  Talmud  assumes  every  oftender  to  be  (Sotah  3*),  and  every 
possible  alleviation  of  his  necessary  pains  and  sutierings  was 
aft'orded  him  (cf.  infra  §  120).  Hence  the  haste  in  which  the 
execution  followed  the  sentence.  Besides,  the  shortness  of  the 
time  elapsing  between  the  passing  and  the  execution  of  the 
sentence  is  in  itself  very  useful  (supra  n.  18) ;  since  the  shorter 
the  interval  between  the  crime  and  its  penalty,  the  stronger 
and  the  more  lasting  is  the  impression  made  on  the  human 

153 


154  THE  EXECUTION. 

§  117.  The  place  of  execution  is  located  outside  of 
the  city  limits,^^*  and  at  a  considerable  distance  from 
the  court-house.^^ 

§  118.  As  the  convict  is  led  forth  towards  the  scaf- 
fold, a  flag-bearer  is  stationed  at  the  entrance  of  the 
court-house,  and,  at  some  distance  from  him,  a  rider 
is  placed,  while  a  herald  marches  in  front  of  the  pro- 
cession, loudly  proclaiming  the  name  of  the  convict, 
his  crime,  where  and  when  committed,  and  the  names 
of  the  prosecuting  witnesses,  at  the  same  time  inviting 
any  and  every  one  knowing  reasons  why  the  sentence 
should  not  be  executed,  to  appear  and  declare  them.^^ 
If  any  favorable  testimony  comes  to  light,  the  flag- 
bearer  gives  the  signal,  and  the  equestrian  hastens  to 

mind  by  the  association  of  the  two  ideas,  the  commission 
of  the  crime  and  the  paying  of  the  penalty,  and  the  more 
involuntarily  will  the  one  be  generally  considered  as  the  cause 
and  the  other  as  the  necessary  and  infallible  eflfect  (cf.  Beccaria 
§19). 

^''^  The  betrothed  maiden  convicted  of  adultery,  and  the  idol- 
ator  sufter  their  respective  penalties  in  the  city  where  they 
committed  the  crime;  and  the  former,  even  at  her  father's  resi- 
dence, when  the  crime  is  laid  there  (Sifre  II,  §  139,  148;  Keth. 
44*' sq.). 

365  Sanh,  42'',  Maimonides  (H.  Sanh.  XII,  3)  puts  the  distance 
at  6000  paces. — The  object  of  locating  the  place  of  execution  far 
from  the  court-house,  is  twofold  :  first,  to  avoid  the  appearance 
of  the  judges'  participating  in  the  execution  (cf.  infra  n.  369) ; 
and,  secondly  and  especially,  to  afford  the  convict  a  last  chance 
for  meeting  some  circumstance  that  might  lead  to  a  rehearing 
of  his  case  (Sanh.  1.  c.     Cf.  §  118). 

="*  Or  the  judges  themselves,  who  remain  in  session,  may  dis- 
cover some  error  in  their  judgment  (cf.  supra  n.  358). 


BETWEEN    LIFE    AND    DEATH.  155 

bring  the  convict  back  before  the  court,  who  hear  the 
new  testimony  and  judge  thereof.^' 

§  119.  The  convict's  own  declaration  that  he  has  to 
make  a  statement  in  his  own  favor  is  sufficient  to 
cause  a  temporary  stay  of  proceedings,  until  after  he 
is  heard  by  the  court;  and  if  no  favorable  result  is 
gained,  a  repetition  of  his  request  to  be  reconducted 
before  the  court  must  likewise  be  heeded. ^*^^  After 
that,  two  scholars ^^  accompany  him;  and  when  he 
again  applies  for  a  reconsideration  of  his  case,  he  is 
obliged  to  state  his  reasons  to  his  learned  escort;  if 
these  consider  them  of  sufficient  weight  and  import- 
ance, he  is  returned  to  court,  and  heard  and  judged 
as  before;  if  not,  he  is  led  on  to  execution. ^^^ 

§  120.  When  the  procession  arrives  within  ten  paces 
from  the  scaffold,  the  convict  is  exhorted  to  make  a 
general  confession  of  his  sins,  but  not  necessarily  of  the 
crime  for  which  he  is  to  suffer  the  penalty. ^^^  There- 
upon a  mixture  of  wine  and  olibanum  is  administered 

3CT  Sanh.  43*;  Maim  on.  H.  Sanh.  XIII,  1.— Except  in  the  case 
of  the  instigator  to  idolatry  (supra  n.  358). 

368  For  it  is  assumed  that  the  convict's  embarrassment  and 
confusion,  incident  to  the  awful  ordeal  of  the  trial,  prevented 
him  from  arguing  clearly  and  pleading  effectually  at  the  proper 
stage  of  the  proceedings  (Sanh.  43^). 

^'»  Not  from  among  the  authors  of  the  verdict,  who,  for  rea- 
sons stated  (n.  365),  do  not  leave  the  eourt-house  until  after  the 
execution  (Maimon.  H.  Sanh.  XIII,  4). 

3TO  Sanh.  42a ;  Maimon.  H.Sanh.  XIII,  1.— He  is  not  prevented 
from  bidding  farewell  to  his  relatives  and  friends  (Semahoth  II, 
§9). 

3^'  Sanh.  42b ;  Maimon.  H.  XIII,  1.  The  formula  of  the  con- 
fession is  very  simple  and  concise.  "May  my  death  be  an  ex- 
piation for  all  my  sins"  is  all  that  the  convict  is  expected  to 


156  THE   EXECUTION. 

to  liim  that  he  may  fall  into  a  stupor,  and  not  real- 
ize the  painful  close  of  his  earthly  career  ;^''^  and  when 
he  is  brought  still  nearer  to  the  fatal  place,  he  is  di- 
vested of  nearly  all  his  clothes,  and  thus  led  on  to  the 
spot.^^^ 

2.  The  Executioners. 

§  121.   Talmudic  jurisprudence  provides  for  no  offi- 
cial executioners.^^*     The  witnesses  to  the  crime  pros- 

!?a3\  Xo  justification  of  the  verdict  is  sought  at  his  mouth. 
On  one  occasion  a  convict,  in  sight  of  the  scaftbld,  asserted  his 
innocence,  saying,  instead  of  the  usual  formula:  "If  I  am 
guilty  of  the  crime  for  which  I  am  about  to  die,  may  my  death 
not  atone  for  my  sins;  but  if  I  am  innocent  thereof,  may  my 
death  be  an  expiation  for  all  my  sins,  and  may  the  court  and 
all  Israel  not  be  held  responsible  for  my  untimely  and  unmer- 
ited death,  but  may  the  false  witnesses  Avho  compassed  this 
judicial  murder  never  find  pardon."  When  this  confession  was 
reported  to  the  court,  the  judges  began  to  doubt  the  justice  of 
their  verdict.  To  their  sorrow,  they  had  no  legal  ground  upon 
which  to  base  a  reversal  of  their  verdict  (of.  supra  n.  358),  but 
they  admitted  that  a  terrible  responsibility  rested  on  the  wit- 
nesses (Sanh.  44";  Yer.  ib.  VI,  §  4,  p.  23"  bot. ;  Tosefta  ib.  IX, 
§5). 

3'2Sanh.  43^;  Maimon.  H.  Sanh.  XIII,  2.— Little  more  than 
one  century  ago,  Blackstone  (IV,  377)  ascribed  to  "the  humanity 
of  the  English  nation"  the  fact  that  there  were  "few  instances 
(and  those  accidental  or  by  negligence)  of  any  person's  being 
embowelled  or  burned,  till  previously  deprived  of  sensation  by 
strangling!" 

^  Sifra  Emor  §  19 ;  Sanh.  45b  .—A  woman  is  not  ueprived  of 
her  clothes,  her  sex  protecting  her  against  the  indignity  (cf. 
infra  n.  395). 

3'"  In  Athens,  it  was  the  duty  of  the  Thesmothetae  to  see  that 
the  sentence  was  executed,   and   of  the  Eleven  to  execute  it 


THE   CONSUMMATION.  15Y 

ecute  the  criminal  and  execute  him.^'^^  When  thev 
find  themselves  unable  to  execute  the  sentence  of  the 
court,  the  by-standers  are  obliged  to  do  it  for  them;^''® 
but  when  their  inability  is  the  result  of  some  mishap 
which  has  occurred  since  the  trial,  the  prisoner  escapes 
the  sentence,  and  is  liberated.  ^''^ 

3.  The  Consummation. 

§  122.  Arrived  at  the  place  of  execution,  the  con- 
vict, who  has  gradually  been  prepared  for  the  closing 

(Smith  770*).  In  Rome  the  quaestores  parncidii  were  the  public 
executioners  as  well  as  the  public  accusers  (ib.  828''),  while  the 
cai-nifex  executed  slaves  and  foreigners  (ib.  217").  To  the  spirit 
of  Talmudic  jurispnidence  it  is  repugnant  to  appoint  a  man 
specially  to  take  another's  life. 

3»  Sifra  Emor,  §  20 ;  Sifra  II,  §  151,  et  al. ;  Sanh.  45^,  et  al. 

^"i  Sifra  Kedoshim,  §  8;  Sifre  II,  §  89,  151,  et  al.;  Sanh.  45^  et 
al.  While  the  public  was  allowed  to  witness  the  execution 
(Sifra  Emor,  §  20 ;  Sifre  II,  §  240,  et  al.),  no  one  was  allowed 
to  lay  hands  on  him  or  otherwise  abuse  him  (cf.  supra  n.  126), 
unless  the  occasion  absolutely  required  it, — as  when  the  convict 
resisted,  and  the  legal  executioners,  the  witnesses,  were  not 
strong  enough  to  cope  with  him  (cf.  infra  n.  395).  Thus  was 
precluded  the  possibility  of  an  infuriated  mob's  wreaking  ven- 
geance on  a  fellow-being,  criminal  though  he  was  (cf.  Sanh. 
44^^). 

377  Sanh.  45b ;  Maimon.  H.  Sanh.  XIV,  8.  If  the  convict, 
however,  is  a  murderer,  he  must  not  be  allowed  to  escape  his 
doom,  but  the  by-standers  must  execute  him. — Blackstone 
(IV,  316)  says :  "The  ancient  usage  was,  as  late  as  Henry  the 
Fourth's  time,  that  all  the  relations  of  the  slain  shall  drag  the 
appellee  to  the  place  of  execution  :  a  custom  founded  upon  the 
savage  spirit  of  family  resentment  which  prevailed  universally 
through  Europe." 


158  THE   EXECUTION. 

scene,  is  pinioned/^^  and  the  execution  of  the  sen- 
tence,— stoning,  burning,  decapitaiion  or  strangling,  ^^^ 
whichever  may  be  the  necessary  and  statutory  con- 
sequence of  the  verdict,  ^"^ — is  proceeded  with.  That 
is  done  in  the  following  manner: 

§  123.  Stoning. — The  witnesses,  having  placed  their 
convict  on  a  high  platform  or  scaffold,  precipitate  him 
to  the  ground. ^^  If  instant  death  is  not  produced  by 
the  fall,  the  witnesses  hurl  upon  his  prostrate  body  a 

3w  Sanh.  49^ ;  Maimon.  H.  Sanh.  XIV,  1.— Any  one  duly 
convicted  of  a  crime  which  renders  him  liable  to  different 
modes  of  death  at  once ;  or  one  who,  convicted  of  one  capital 
crime,  commits  another  of  greater  malignity,  is  punished  with 
the  death  to  which  the  more  heinous  crime  made  him  subject 
(cf.  supra  §§  17  and  25).  Thus  when  one  is  guilty  of  illicit  com- 
merce with  a  married  woman, — for  which  the  penalty  is  death 
by  strangulation  (§  29), — he  is  punished  with  burning,  if  that 
woman  is  his  wife's  mother,  (§  27).  Again,  if  one  standing 
convicted  of  false  prophecy  (§  29),  in  the  presence  of  the  court 
(cf.  Tosafoth  Sanh.  81*,  s.  v.  Wenigmar  supra,  u.  143)  com- 
mits blasphemy  (§  26),  he  is  punished  with  stoning  (Sanh.  8P ; 
Maimon.  1.  c.  4.    Cf.  supra  §  17 ;  infra  §  127. 

379  por  the  respective  subjects  of  these  penalties  cf.  supra  §§ 
26-29 ;  but  it  will  presently  appear  that  the  execution  of  the 
sentence  under  the  Talmudic  dispensation,  is  not  the  same  as  it 
was  under  the  purely  Mosaic  system.  From  that  system  have 
been  preserved  in  the  Talmudic  system  only  the  technical 
names  of  the  deaths,  but  not  the  modes  of  the  application  of 
the  respective  deaths. 

3»  Cf.  supra  n.  355. 

3"'  Precipitation  was  practised  by  the  most  ancient  nations. 
The  Greeks  precipitated  the  convict  into  a  pit,  which  was  a 
noisome  hole  with  sharp  spikes  at  top  and  bottom  (cf.  supra 
n.  86). 


THE    CONSUMMATION.  159 


heavy  stone;  and  only  when  that  is  not  sufficient,  the 
hy-standers  throw  stones  at  him  until  he  is  dead.^^ 

§  124.  Burning. ^^ — The  witnesses  secure  the  cul- 
prit so  as  to  render  him  unable  to  move;  then  his 
mouth  is  forced  open  by  means  of  a  cord  wrapped  in 
a  soft  cloth,  ^  and  tightly  drawn  around  his  neck,  and 
then  some  molten  lead  is  poured  down  his  throat.  ^^ 

3^2  Sifre  I,  §  144,  et  al. ;  Sanh.  45\— These  steps  were  pre- 
scribed by  the  Rabbis  in  order  to  prevent,  as  much  as  possible, 
the  mutilation  of  the  convict's  body.  The  application  of  the 
Mosaic  ordinance :  ''Thou  shalt  love  thy  neighbor  as  thyself" 
(Lev.  XIX,  18),  the  Rabbis  maintain,  must  be  extended  beyond 
the  limits  of  social  intercourse  in  life,  so  that  even  the  pro- 
nounced criminal  may  share  its  benefits;  and  although  the 
law  justly  claims  his  life,  the  spirit  of  love  and  compassion 
must  be  manifested  towards  him  by  rendering  his  death  decent, 
— i.  e.  by  abstaining,  if  possible,  from  sending  him  to  the  fel- 
on's grave,  bearing  disfiguring  marks  of  violence  (Sanh.  45% 
52^,  et  al.). 

*3  Whenever  this  penalty  was  inflicted,  it  was  carried  out  in 
the  literal  sense  of  the  term,  and  among  some  nations  in  a  most 
horrible  way.  Among  the  Romans,  the  convict  was  wrapped 
in  a  garment  covered  with  pitch,  and  then  set  on  fire  and 
burned  (Fiske  III,  §  264,  3).— MacFarlane  (Empire  of  Japan, 
Book  V)  tells,  on  the  authority  of  travellers,  that  a  similar  cus- 
tom obtains  in  Japan.  There  the  convict  is  enveloped  in  a 
close-fitting  shirt,  made  of  reeds,  to  which  fire  is  applied :  and 
while  the  poor  victim,  distracted  by  the  flames,  runs  and  leaps 
about  in  his  agony,  which  is  called  by  the  pleasant  name  of  the 
''Death-dance,"  the  spectators  laugh  and  applaud,  as  at  a  dance 
in  the  theatre. 

354  That  no  marks  be  left  on  the  body  (cf.  supra  n.  382). 

3^5  Sanh.  52*;  Maimon.  H.  Sanh.  XV,  3.  According  to  some 
Rabbis,  the  mixture  was  an  alloy  of  lead  and  tin  (Yer.  Sanh. 
VII,  §2,  p.  24b;  Maimon.  1.  c).  On  the  other  hand,  the  Tal- 
mud preserves  an  account  of  an  execution  at  the  stake,  which  a 


160  THE   EXECUTION. 

§  125.  Decapitation. — The  convict  having  been 
fastened  to  a  post,  his  head  is  severed  from  his  body 
by  a  blow  with  a  sword. ^^^ 

§  126.  Strangling. — The  convict  having  been  care- 
fully secured,  a  cord  wrapped  in  a  soft  cloth  is  drawn 
around  his  neck  until  all  breath  leaves  his  body.^^^ 

§  127.  When,  after  due  trial  and  conviction,  those 
convicted  of  different  crimes,  and  consequently  under 
senteDces  of  different  modes,  of  death,  are  so  inter- 
mixed that  the  executioners  are  unable  to  distinguish 
one  from  another, — all  undergo  the  death  of  the  least 
criminal.^     When  a  convict  succeeds  in  hiding  him- 

sage  asserted  that  he  had  witnessed  in  his  early  childhood,  dur- 
ing the  last  years  of  Judea's  second  commonwealth ;  but  as  no 
one  is  competent  to  bear  witness  to  what  he  has  seen  in  his 
minority  (supra  n.  264),  no  rule  of  procedure  could  be  estab- 
lished on  his  authority  (Tosefta  Sanh.  IX,  §  11;  Sanh.  52^). 
And  when  the  same  authority  averred  that  he  had  seen  a  simi- 
lar execution  in  his  riper  y«ars,  the  Kabbis  remarked  that  the 
court  so  ordering  it  was  an  ignorant  court,  or  consisted  of  Sad- 
ducees  (Sanh.  1.  c). 

3*  Sanh.  52t';  Maimon.  H.  Sanh.  XV,  4. 

^■^  Sanh.  52'>;  Maimon.  H.  Sanh.  XV,  5.  With  the  exception 
of  the  deadly  mixture,  this  is  the  same  as  burning  (§  124),  and 
is  the  penalty  of  all  offenses  for  which  the  Bible  awards  death 
at  human  hands,  without  defining  the  manner  of  the  death.  It 
is  considered  the  least  painful  of  all  (Mekhilta  Nezikin,  §  5 ; 
Sanh.  1.  c,  et  al.). — The  Persians  had  a  singular  punishment 
for  great  criminals.  A  high  tower  was  partly  filled  with  ashes, 
into  which  the  culprit  was  thrown.  The  ashes  were  continu- 
ally stirred  up  by  means  of  contiguous  and  surrounding  ma- 
chinery, and  the  dust  therefrom  gradually  sufibcated  him  (cf. 
II  Mace.  XIII,  5). 

»-8  Sanh.  TQb;  Maimon.  H.  Sanh.  XIV,  6.     Cf.  supra  n.  378. 


POSTHUMOUS   IGNOMINIES.  161 

self  amid  a  crowd  of  people  and  he  cannot  be  duly 
identified,  the  penalty  is  altogether  remitted,'^' 

4.  Posthumous  Ignominies. 

§  128.  In  order  to  render  the  crimes  of  idolatry  and 
blasphemy  more  repugnant  to  the  masses  of  the  people, 
the  punishment  for  them  is  rendered  more  ignomini- 
ous by  the  superaddition  of  hanging. ^^ 

§  129.  Hanging,  as  part  of  the  punishment  for  the 
crimes  named,  is  a  posthumous  superaddition  to  'Ston- 
ing; ^^'  and  although  it  is  intended  as  an  insult  to  the 


»9  Sanh.  79^ ;  Maimon.  H.  Sanh.  XIV,  7.  If  a  case  of  this 
kind  occurs  before  the  trial,  even  when  there  are  only  two  per- 
sons present  and  one  of  them  is  beyond  all  suspicion  of  crime, 
there  can  be  no  prosecution,  unless  the  criminal  can  be  fully 
identified  by  eye-witnesses   (Sanh.   80*.      Cf.   supra    n.   287). 

39"  Sifre  II,  §  221 ;  Sanh.  45";  Maimon.  H.  Sanh.  XV,  6.— In 
Kome,  hanging  was  one  of  the  several  modes  of  punishment 
for  treason  (Smith  754*');  but  in  England,  it  was  one  of  a  series 
of  punishments  inflicted  for  the  same  oftense.  Here  the  crim- 
inal was  drawn  to  the  gallows,  and  not  carried  or  walked ;  he 
was  then  hanged  by  the  neck  and  cut  down  alive ;  his  entrails 
were  thereupon  taken  out  and  burned  while  he  was  still  alive ; 
then  he  was  beheaded,  and  his  body  divided  into  four  parts  and 
left  to  the  King's  disposal  (Blackstone  IV.  92). 

391  Under  the  Talmudic  dispensation  no  punishment  was  at- 
tended with  insult,  except  that  for  these  crimes  (cf.  supra  n. 
362);  and  never  was  an  execution  attended  with  any  of  those 
tortures  and  horrible  mutilations  which  have  disgraced  the 
jurisprudence  of  so  many  polished  nations  before  and  since  the 
close  of  the  Talmud.  What  a  chapter  of  horrors  is  that  describ- 
ing the  martyrdom  of  the  seven  brothers  for  strenuous  adher- 
ence to  their  ancestral  religion  (II  Mace.  VII) !  How  terrible 
were  the  fiendish  torments  inflicted  by  Rufus,  in  the  name  of 
11 


162  THE   EXECUTION. 

criminal,  the  exposure  of  liis  suspended  body  must  not 

Roman  law,  on  the  .Tewisli  Martyrs !  R.  Akiba  was  flayed  alive 
with  iron  pincers  (Berakhotli  61'');  another  Rabbi  was  en- 
shrouded in  a  parchment  scroll  containing  the  Pentateuch,  and 
slowly  roasted  upon  a  pyre  of  green  twigs,  while  wet  wool  was 
put  on  his  chest  to  prolong  the  agony  of  death  (Ab.  Zara 
18'"').  Breaking  on  the  wheel,  impaling,  exposing  to  wild 
beasts,  and  crucifixion, — in  which  life  and  consciousness  and 
excruciating  pain  were  prolonged  not  unfrequently  to  the  third 
day,  and  sometimes  even  to  the  seventh, — were  among  the 
delectable  sights  at  Roman  executions ;  while  the  Persians  prac- 
tised a  form  of  execution  by  the  boat,  which  combined  all  the 
horrors  an  oriental  imagination  could  suggest,  and  from  describ- 
ing which  an  occidental  pen  revolts.  Mithridates,  with  much 
difficulty,  found  relief  in  death  after  being  confined  in  the  boat 
for  seventeen  days  (Plutarch,  Life  of  Artaxerxes).  And  com- 
ing down  the  vista  of  time  to  the  last  century  and  to  England, 
we  meet  with  numerous  circumstances  of  terror,  pain  and  dis- 
grace superadded  to  the  actual  death-penalty ;  and  yet  Black- 
stone  glories  in  the  clemency  of  the  English  law!  In  sum- 
ming up  the  several  modes  of  punishment  practised  in  England 
and  in  his  days,  he  remarks  (IV,  377)  :  "Disgusting  as  this  cata- 
logue may  seem,  it  will  aft'ord  pleasure  to  an  English  reader, 
and  do  honor  to  the  English  law,  to  compare  it  Avith  that 
shocking  apparatus  of  death  and  torment  to  be  met  with  in  the 
criminal  codes  of  almost  every  other  nation  in  Europe."  If 
Blackstone  had  good  reason  for  exulting  in  the  humanity  of 
the  English  law  as  it  was  constituted  in  his  days,  a  little  over 
a  century  ago,  how  much  more  right  have  the  Jews  to  glory  in 
the  Talmudic  laws  which  are  confessedly  as  high  above  the  Eng- 
lish laws  in  humanity  as  in  age!  Here  we  not  only  see  no  tor- 
turous and  lingering  punishments,  but  even  the  swiftest  method 
of  death,  if  death  must  be  inflicted,  is  deprived  of  its  horrors 
and  pains  (cf.  §  120),  while  posthumous  insults  are  exceedingly 
rare,  and  those  inflicted  but  of  momentary  duration.  Man  is 
endowed  with  the  image  of  his  Maker— argues  the  Talmud ;  he 


POSTHUMOUS   IGNOMINIES.  163 

be  protracted. ^^2  The  convict's  hands  are  joined  above 
his  head,  and  by  them  he  is  suspended  from  a  gib- 
bet,3^3  but  immediately  thereafter  taken  down.*^* 

§  130.  Only  the  party  duly  convicted  of  idolatry  or 
blasphemy,  is  the  subject  of  this  ignominy,  but  the  con- 
futed witnesses  to  the  alleged  crime  do  not  share  it.'^^ 

§  131.  The  bodies  of  executed  criminals  must  be 
buried  soon  after  the  execution, ^^^  but  not  in  the  sepul- 


must  therefore  not  be  exposed  to  disgrace  (Sanh.  46^     Cf.  infra 

n.  393). 

^  In  Rome  the  bodies  of  executed  criminals  were  usually 
exposed  to  the  gaze  of  the  populace,  either  before  the  prison,  or 
on  certain  stairs,  called  scalae  gemoniae  (Smith  213'').  In  Eng- 
land the  heads  of  those  executed  for  treason  were  exposed  on 
the  pikes  of  the  executioners,  or  from  the  tower,  and  often  the 
dismembered  body  was  nailed  up  in  different  parts  of  the  city. 

393  The  gibbet  must  be  an  artificial  one,  easily  removable  out 
of  sight;  and  not  a  stationary  one,  as  a  tree  rooted  in  the 
ground,  which  would  require  cutting  down  before  removal,  or 
if  left  standing  in  its  place  would  servx  as  a  constant  reminder 
of  a  human  being''s  disgraceful  end  (cf.  n.  391). 

3»«Sifre  II,  §221;  Sanh.  46%  sq.;  Maimon.  H.  Sanh.  XV.  7. 
The  gibbet  as  well  as  the  instruments  used  in  the  execution  are 
buried  out  of  human  sight,  in  the  neighborhood  of  the  crim- 
inal's grave  (Sanh.  45";  Maimon.  1.  c.  9). 

395  Sifre  II,  §  221.  Cf.  supra  §  97.— Nor  is  this  superaddition 
inflicted  on  female  convicts  (Sifre  ib.;  Sanh.  45f  sq.  Cf.  supra 
n.  376).— By  English  law  in  Blackstone's  days,  the  punishment 
for  treason  in  woman  was  different  from  that  inflicted  on  man 
(n.  390).— "For  as  the  decency  due  the  sex  forbids  the  expos- 
ing and  mangling  their  bodies,  their  sentence  (which  is  full  as 
terrible  to  sensation  as  the  other)  is  to  be  drawn  to  the  gallows, 
and  there  to  be  burned  alive"  (Blackstone  IV,  202). 

39«  Sifre  II,  §  221;  Sanh.  46.— It  was  the  general  custom  among 
the  Hebrews,  as  among  other  Eastern  nations,  to  bury  their 


164  THE   EXECUTION. 

chres  of  their  families. ^^'  They  are  interred  in  ceme- 
teries especially  devoted  to  such  purposes. ^^^ 

§  132.  The  relatives  of  executed  criminals  are  not 
allowed  to  wear  outside  marks  of  mourning  for  them;^^' 
but  are  to  call  on  the  prosecuting  witnesses  and  the 
court,  and,  kindly  saluting  them,  manifest  their  per- 
sonal abhorrence  of  the  crime,  and  approval  of  the 
verdict.*"" 

§  133.  No  sentence  carries  with  it  the  least  change  in 
the  status  of  the  convict's  children,*"^  or  confiscation 

dead  as  soon  after  the  occurrence  of  death  as  the  necessary  pre- 
parations permitted.  A  postponement  of  the  rite,  except  for 
purposes  of  dignifying  the  occasion,  was  considered  sacrilegious. 
In  Rome  the  remains  of  criminals  wei*e,  after  exposure  (supra 
n.  295  and  392),  dragged  with  hooks  and  cast  into  the  Tiber"; 
and  in  England,  no  executed  criminal  could  be  interred  before 
his  remains  were  publicly  dissected  (Blackstone  IV,  202). 

39^  Family  sepulchres  were  usual  among  the  Hebrews. 

39^  Tosefta  Sanh.  IX,  §  8 ;  Sanh.  46^.— The  community  pro- 
vides two  cemeteries :  one  to  receive  the  remains  of  those  exe- 
cuted by  stoning  or  burning,  and  another  for  the  decapitated 
or  strangled.  After  the  thorough  dissolution  of  the  flesh,  the 
naked  bones  may  be  disinterred  and  buried  in  the  general  Jewish 
cemetery. 

^  As  baring  of  feet,  dressing  in  black,  rending  the  garments 
(cf.  Moed  Katon.  14''  sq.,et  al.;  Maimon.  H.  Abel  V,  sq.;  supra 
n.  37). — Nor  were  relatives,  under  such  circumstances,  allowed 
to  mourn  among  the  Romans  (Smith  754''). 

«'  Sifre   Maimon.  §  1 ;  Sanh.  46*. 

*^^'  Sanh.  27";  Nidda  50'';  et  al.  Cf.  supra  n.  323.  Plato  is  of 
the  opinion  that,  instead  of  punishing  the  innocent  children  of 
a  convict,  they  ought  to  be  commended  for  not  having  followed 
their  parent's  examples  (Montesquieu,  B.  VI,  c.  XX) ;  and  this 
opinion  is  shared  by'  the  Pharisees  of  old  (cf.  Josephus,  IV 
Ant.   VIII,  39). — How  much  and  how  justly  do  we  congratu- 


POSTHUMOUS   IGNOMINIES.  165 

of  his  property.^"-     All  his  hereditaments  descend  to 
his  heirs/°^ 

late  ourselves  on  that  principle  of  our  constitutional  law,  that 
no  criminal  attainder  shall  work  corruption  of  blood!  Yet 
this  principle  was  embodied  in  the  constitution  framed  by  Moses, 
although  the  opposite  doctrine  prevailed  in  the  governments  of 
the  most  ijolished  nations  of  antiquity.  His  statute  is  expressed 
with  characteristic  clearness  and  brevity:  "The  parents  shall 
not  be  put  to  death  for  the  children,  neither  shall  the  children 
be  put  to  death  for  the  parents;  every  man  shall  be  put  to  death 
for  his  own  sins''  (Deut.  XXIV,  16).  This  principle  Moses 
incorporated  into  his  code,  in  the  face  of  prejudice,  common 
opinion,  immemorial  usage,  and  the  sentiment  of  inexorable  and 
insatiate  revenge  (Wines  262).  And  the  Talmudists  followed  his 
example  of  justice  and  humanity,  in  the  face  of  the  opposite 
doctrine  among  the  cotemporaneous  legislators  of  other  nations. 
Among  the  Greeks  and  the  Romans,  the  posterity  of  those  who 
were  put  to  death  by  the  people,  or  were  convicted  of  certain 
infamous  crimes,  such  as  theft,  inherited  the  infamy  of  their 
ancestors  (Smith  479%  5^V^.)  The  Macedonian  law  extended 
even  the  capital  punishment  of  treason,  not  only  to  the  children, 
but  to  all  the  relations  of  the  delinquent :  and,  of  course,  their 
estates  also  were  forfeited,  as  no  man  was  left  to  inherit  them 
(Blackstone  IV,  383).  But  among  the  Hebrews,  only  the  nat- 
ural taint,  such  as  results  from  mesalliance,  descended  to  the 
offspring  or  recoiled  on  the  ftxther  (Lev.  XXI,  9-15).  Xo  one 
is'criminally  responsible,  according  to  Talmudic  jurisprudence, 
for  the  crimes  of  another.  It  is  true,  the  Rabbis  declare  "all 
Israelites  responsible  for  one  another"  (Sanh.  27'';  Sheb.  39a); 
but  this  is  in  a  moral  sense  only.  When  one  can  preserve  another 
from  committing  a  crime,  and  does  not  avail  himself  of  his 
power,  he  is  responsible  before  Heaven  for  the  omission.  There 
exists  among  Israelites  a  sort  of  "Frankpledge "  to  preserve  the 
peace  and  morality  of  society;  but  it  does  not  go  so  far  as  to 
include  suffering  human  punishment  for,  or  with,  one  another. 
"^Arakhin  6'';  Maimon.  IT.  Arakhin  I,  14,  Although  with 
reference  to  amercements  (cf.  .supra  n.  148)  for  injuries  inflicted 


166  THE   EXECUTION. 


5.  Minor  Punishments. 

§  134.  Exile,  as  the  penalty  for  accidental  homi- 
cide,^* means  confinement  in  the  city  of  refuge  for 
life,*"^  unless  the  reigning    High  Priest  dies   in  the 

by  him  after  his  conviction,  he  is  considered  dead  as  soon  as 
sentence  of  death  is  pronounced  against  him,  he  may  neverthe- 
less dispose  of  his  property  as  he  sees  fit.  In  cases  of  treason, 
however,  all  his  effects  are  forfeited  to  the  civil  government 
(Tosefta  Sanh.  IV,  §6;  et  al), — The  forfeiture  or  confiscation 
of  property  for  treason  was  universal  among  ancient,  and  is 
almost  so  among  modern  nations;  but  for  other  oflfenses  too  the 
laws  of  many  nations  confiscated  the  real  estate  of  the  attainted 
(cf.  Blackstone  IV,  383  sq.);  and  even  when  confiscation  was 
not  included  in  the  penalty,  the  attainted  had  not  the  right  of 
transferring  or  transmitting  property  (lb.  382).  Thus  a  banished 
person  (or  a  professed  monk)  was  accounted  absolutely  dead  in 
law,  therefore  all  his  rights  were  extinct,  and  his  next  heir  could 
at  once  enter  on  his  estate  (ib.  I,  132). 

^^Tosefta  Sanh.  VI,  §  G;  Sanh.  48b).— In  Germany,  by  the 
famous  Golden  Bull  (copied  almost  verbatim  from  Justinian's 
code),  the  lives  of  the  sons  of  such  as  conspire  to  kill  an  elector 
are  spared,  as  it  is  expressed,  by  the  emperor's  particular  bounty. 
But  they  are  deprived  of  all  their  effects  and  rights  of  succes- 
sion, and  are  rendered  incapable  of  any  honor,  ecclesiastical 
or  civil :  "to  the  end  that,  being  always  poor  and  necessitous, 
they  may  forever  be  accompanied  by  the  infamy  of  their  father; 
may  languish  in  continual  indigence ;  and  may  find  their  pun- 
ishment in  living,  and  their  relief  in  dying"  (Blackstone  IV, 
383). 

^-^  Cf.  supra  §  23,  n.  76,  §  35. 

*'5  Sifre  I,  §  160;  Tosefta  Maccoth  III,  §  5;  Maccoth  lib.  N'o 
amount  of  money  can  shorten  it  or  commute  it  (cf.  supra  n. 
95). — Among  the  Greeks  where  murder  was  commonly  pun- 
ished with  banishment,  either  voluntarily  sought  or  expressly 


MINOR    PUNISHMENTS.  167 

meantime ;  then  the  refugee  is  considered  purged 
of  his  unpremeditated  offense,  and  therefore  at  liberty 
to  return  home.*"® 

§  135.  On  his  way  ^  to  the  city  of  refuge,  the  fugi- 

decreed  by  public  sentence,  banishment  extended  over  but  one 
year,  and^  even  that  could  be  commuted  to  a  fine  (Fiske  III,  §  37. 
Cf.  supra  n.  123). 

*«  Num.  XXXV,  25 ;  Sifre  I,  §  160 ;  Tosefta  Maccoth  III, 
§5;  Maccotli  IK  He  may  then  resume  control  of  his  prop- 
erty as  before  the  unfortunate  accident,  but  he  is  not  restored 
to  his  former  offices  of  honor  (Sifre  1.  c;  Maccoth  13*,) — Various 
reasons  are  assigned  for  allowing  the  fugitive  to  return  home 
on  the  death  of  the  high  priest.  Maimonides  (More  III,  c.  40) 
believes  the  death  of  the  pontift'  to  have  been  the  termination 
of  individual  mourning,  inasmuch  as  it  is  natural  for  man  to 
drown  the  recollections  of  his  personal  grief  in  the  similar  or 
worse  sorrows  of  the  general  public ;  and  since  the  death  of  so 
august  a  personage  as  the  high  priest,  was  considered  a  great 
calamity  to  the  whole  Jewish  people,  it  plunged  ever}-  man  in 
deep  mourning,  and  made  the  "avenger  of  the  blood"  (supra 
n.  95)  forget  his  own  bereavement,  even  in  sight  of  the  human 
author  thereof.  Others  believe  it  a  kind  of  amnesty  genera.lly 
extended  to  criminals  on  the  accession  of  a  new  ruler,  spiritual 
or  temporal,  so  that  the  joy  of  the  occasion  may  be  universal 
(cf.  Luzzatto  ad  Xum.  1.  c).  Still  others  think  the  death  of 
the  high  priest  to  be  in  itself  an  atonement  for  unintentional 
bloodshed  (Yer.  Yoma  VII,  §  5,  p.  44=  top).  It  is  perhaps  for 
this  reason  that,  when  one  is  found  guilty  of  accidental  homi- 
cide during  the  interim  between  the  death  of  the  one  high  priest 
and  the  accession  of  the  other;  or  when  he  accidentally  kills 
the  high  priest  himself;  or  when  the  high  priest  himself  is 
found  guilty  of  that  offense,  the  exile  may  never  leave  the  city 
of  refuge,  not  even  after  the  death  of  the  succeeding  high  priest 

Sanh.  18*  sq.;  Maccoth  IP). 

*■'  The  roads  leading  to  the  several  cities  of  refuge  must  al- 
ways be  kept  in  good  condition,  so  that  no  impediment  bars 


168  THE   EXECUTION. 

tive  is  protected  by  an  escort  furnished  liim  by  tbe 
court  ;  ^'^^  and  once  within  the  city  limits,  he  is 
secure  against  molestation/"^  If  a  misfortune  befalls 
him  in  his  new  home  similar  to  that  which  forced  him 

the  fugitive's  progress.  Twice  a  year  the  authorities  are  bound 
to  have  the  roads  thoroughly  inspected,  and,  when  necessary, 
repaired,  while  guideposts  must  be  placed  at  all  cross-roads  to 
direct  the  fugitive's  steps  towards  his  goal,  and  thus  prevent 
him  from  going  astray  and  falling  into  danger  (Sifre  I,  §  159,  et 
al. ;  Tosefta  Maccoth  III,  §  5 ;  Maccoth  10*  sq.). — As  to  the 
cities  themselves,  they  must  be  provided  with  all  means  neces- 
sary to  sustain  human  life,  but  must  not  be  very  large  and  pop- 
ulous, or  centres  of  commerce  and  industry,  lest  they  draw  too 
many  people  into  their  midst,  and  thus  afi'ord  the  avenger  an 
opportunity  for  covertly  entering  the  city  and  killing  the  fugi- 
tive. iSTor  must  they  be  too  small  to  afford  protection,  or  too 
limited  to  afford  accommodations  (Sifre  II,  §  180 ;  Tosefta  1.  c, 
§  8  sq. ;  Maccoth  1.  c),  which  must  be  furnished  gratuitously 
(Maccoth  13%  etal.). 

*"*  Tosefta  Maccoth  III,  §  5 ;  Maccoth  9^.— In  case  death  over- 
takes him  before  he  reaches  his  destination,  his  body  is  car- 
ried thither ;  if  after  he  arrives,  he  is  buried  there.  In  either 
case,  his  remains  may  be  brought  home  on  the  death  of  the 
reigning  high  priest  (Maccoth  11^). 

«9  Sifre  I,  §  160;  Maccoth  11^.  If  he  intentionally  passes  the 
city  limits,  the  avenger  may  slay  him  with  impunity;  but 
when  he  inadvertently  oversteps  them,  his  slayer  is  subject  to 
the  penalty  of  homicide,  or  of  murder,  as  the  case  may  be 
(Maccoth  1.  c.).— By  the  Attic  law  it  was  unlawful  to  do  any 
iiijury  to  the  fugitive,  either  on  his  leaving  the  country  or  dur- 
ing his  absence  (Smith  770^).  Still,  exile  does  not  seem  always 
to  have  protected  him  from  death  at  the  hands  of  the  avenger. 
Instances  are  met  with  in  which  fugitives  are  represented  as 
wanderers  over  the  earth  and,  though  in  foreign  lands,  as  be- 
ing haunted  by  the  fear  of  the  vengeance  of  the  kinsmen  of  the 
slain  (cf.  ib.  134b). 


MINOR   PUNISHMENTS.  169 

to  desert  his  old  one,  he  must  remove  his  habitation 
from  that  quarter  of  the  town  in  which  it  is  located 
to  another,  but  he  must  not  leave  the  city.*^°  If  he 
does,  it  is  at  his  peril.*" 

§  136.  Penal  Servitude  may  be  imposed  on  man,"^ 

*'o  Sifre  II,  §  181 ;  Maccoth  12*'.— Among  the  Greeks,  if  a 
man,  after  going  into  exile  for  unintentional  homicide,  and 
before  appeasing  the  relatives  of  the  deceased  (of,  supra  n.  123), 
was  charged  with  having  committed  a  murder,  he  was  brought 
back  in  a  ship  to  the  harbor  at  Phreatto  in  the  Piraeus,  and 
there  pleaded  his  cause  on  board  ship,  while  the  judges  re- 
mained on  land.  If  he  was  convicted,  he  suftered  the  penalty 
for  murder ;  if  acquitted,  he  was  returned  to  his  place  of  exile 
to  sufler  the  remainder  of  his  sentence  (Smith  135%  769''). 

*"  Maccoth  11*^;  Maimon.  II.  Rozeah  VII,  8.— By  the  laws 
of  Athens,  a  convicted  murderer,  if  found  within  the  limits  of 
the  state,  might  be  seized  and  put  to  death ;  and  whoever  har- 
bored or  entertained  any  one  who  had  fled  from  his  country  to 
avoid  capital  punishment,  was  liable  to  the  same  pesal'ties 
as  the  fugitive  himself  (Smith  13#).  Similar  was  the  law  in 
England,  where  returning  from  transportation,  or  being  seen 
at  large  in  Great  Britain,  before  the  expiration  of  the  term  for 
which  the  offender  was  ordered  transported,  was  a  capital  of- 
fense  Blackst.  IV,  132). 

^'2  Cf.  supra  §  22,  n.  75.  But  he  must  not  be  sold  publicly, 
*'upon  the  auction  stone,"  or  to  a  non-Israelite  (Sifra  Behar 
§7 ;  Sifre  II,  §  118  ;  Mekhilta  :N'ezikin  §  1 ;  Kidd.  20\  Cf.  supra 
n.  75).  The  Greeks  had  regular  auction  sales  of  slaves  on  the 
first  of  every  month,  usually  announced  by  a  crier,  standing  on 
what  was  called  the  ''vender's  stone'"  (Fiske  III,  §99;  Smith 
881^).  The  Romans  exposed  their  slaves  from  scaffolds  in  the 
markets,  and  tablets  were  suspended  from  their  necks,  stating 
their  country,  age,  character,  «&c.  (Fiske  1.  c.  §  323).  Both  the 
Greeks  and  the  Romans  sold  their  slaves  to  the  highest  bidder, 
native  or  foreign. 


170  THE   EXECUTION. 


but  not  on  woman,"'  and  for  a  period  of  not  more  than 
six  years.  *^* 

§  137.  As  regards  the  position  of  the  convict,  it  may- 
be said  that,  although  his  master  could  compel  him  to 
perform  all  such  work  as  he  had  been  accustomed  to 


*'3  Sifre  II,  §  118 ;  Sotah  23».— The  Eoman  law  made  a  slave 
of  the  free  woman  who  held  commerce  with  a  male  slave 
(Smith  2121'). 

^■"Exodus  XXI,  2;  Mekhilta  Nezikin,  §  1;  Sifre  II,  §  118; 
Kidd.  17*.  If  the  servant  was  able  to  repay  his  master  for  the 
unexpired  term  in  proportion  to  the  price  paid  for  him,  he 
could  by  so  doing  regain  his  liberty  at  any  time  (Lev.  XXY,  49 
sq. ;  Sifra  Behar  §  7) ;  and  if  the  year  of  the  jubilee  occurred 
during  the  term,  the  servitude  ceased  of  itself  (Lev.  1.  c.  39  sq.). 
If,  owing  to  physical  disability,  the  slave  could  not  work  for 
part  of  the  term,  that  was  the  master's  loss,  and  did  not  mili- 
tate against  his  right  to  emancipation  either  at  the  termination 
of  the  six  years  or  at  the  beginning  of  an  intervening  release 
year  (Mekhilta  1.  c.  §  2;  Sifre  1.  c).  Xor  could  he  be  sold  for 
less  than  his  actual  market  value,  or  when  worth  more  than 
the  thing  stolen  (cf.  supra  §  22),  without  regard  to  the  mulctu- 
ary  additions  (cf.  Exodus  XXII,  1-3.— Mekhilta  1.  c.  §  12; 
Kidd.  1.  c.).— Slavery  was  a  very  old  institution,  and  so  deeply 
rooted  in  the  economy  of  nations  as  to  appear  to  be  natural, — 
but  Moses  interdicted  all  but  two  kinds  of  slavery  among  the 
Jews :  the  voluntary  enslavement  of  the  necessitous  (Lev.  XXV,' 
39  sq.),  and  the  enforced  servitude  of  the  felon  (Exodus  XXII, 
3).  Moses  thus  prepared  the  way  for  the  total  abolition  of 
the  institution,  at  least  in  as  far  as  the  person  of  the  Jew  was 
concerned  (cf.  Wines  267).  The  Kabbis,  by  their  restrictive  en- 
actments based  on  the  spirit  of  his  legislation,  carried  his  phi- 
lanthropic measures  further,  rendering  the  enforced  servitude 
of  a  Hebrew  highly  impracticable  (cf.  n.  416),  and,  when  im- 
posed, the  severit}'  and  inhumanity  which  characterized  the 
institution  among  other  nations  were  not  allowed  to  be  prac- 
tised even  upon  a  convict. 


MINOR    PUNISHMENTS.  171 

do  while  free,  no  menial  labor  could  he  imposed  on 
him,*'*  and  he  was  in  all  respects  to  be  treated  with  due 
consideration  as  a  human  being  and  a  brother.*'® 

§  13.8.  Flagellation  *'^  is  administered  by  the  pub- 
lic servitor,  *^'^  with  quadruple  leathern  straps,  *''  on  the 

^'^Sifra  Behar  §  7;  Sifre  II,  ?  118;  Mekhilta  Nezikin  ?  1. 
E.  g.,  attending  the  master  to  the  bath,  fastening  or  unfasten- 
ing his  sandals,  washing  his  feet,  or  any  other  labor  usually 
performed  by  the  regular  slave ;  for  the  Bible  (Lev.  XXV,  39) 
says :  ''Thou  shalt  not  compel  him  to  labor  as  a  bondsman.'' 
N'or  may  he  be  turned  by  his  master  into  a  servant  of  the  pub- 
lic, as  a  tailor,  a  baker  or  a  barber,  unless  that  was  his  original 
vocation. — The  Roman  slave  could  be  employed  in  every  con- 
ceivable manner,  and  usually  performed  the  most  degrading 
services  (Fiske  III,  i  322). 

*'6  Sifra  Behar  §  7;  Mekhilta  Xezikin  §  2  ;  Kidd.  20^  Thus, 
he  was  to  be  fed  from  his  master's  own  table,  clothed  and 
housed  respectably ;  and,  in  general,  his  position  was  not  to  be 
rendered  in  the  least  uncomfortable.  These  rules  are  based  on 
the  Scriptural  dictum  referring  to  the  slave,  which  says  (Deut. 
XV,  16):  "It  is  pleasant  unto  him  with  thee,"  and  seem  to 
have  been  carried  so  far  that  it  came  to  be  said:  "He  who 
buys  a  Hebrew  slave,  buys  himself  a  master"  {Kidd.  1.  c;  ib. 
22a). — Amoug  other  nations,  the  condition  of  the  slave  was 
very  hard,  he  being  considered  a  chattel  rather  than  a  per- 
son (cf.  Fiske  III,  §  322;  Smith  883«),  and  usually  treated 
with  extreme  cruelty  (Fiske  1.  c.  §  99).  The  master  had  un- 
limited power  over  his  slave,  extending  even  to  life  and  death 
(Fiske  1.  c.  §  63). 

*"  Cf.  supra  I  21.  n.  74. 

411*  "Who  must  be  endowed  with  more  mental  than  physical 
vigor,"  that  he  may  not  strike  too  hard  or  on  a  dangerous  spot 
(Maccoth  23=^;  Maimon.  M.  Sanh.  XVI,  9),  or  that  he  may 
know  when  to  stop,  in  case  the  convict  grows  weak  under  the 
lash  (cf.  Maccoth  22^  sq. ;  Maimon.  1.  c.  XVII,  2).  If  the  con- 
vict happens  to  be  one  of  his  parents,  he  must  not  participate 


172  THE   EXECUTION. 

bare  body  of  the  convict  who,  in  a  reclining  position, 
is  tied  by  his  hands  to  a  post.*^"  Thirty-nine  is  the 
highest  number  of  lashes  that  may  be  administered 
for  any  one  offense/^' 

§  139.  If  after  being  pinioned,  the  convict  succeeds 
in  escaping,  or  if  the  lash  breaks  at  the  second  stroke, 
the  sentence  is  considered  executed,  and  the  prisoner 
is  discharged.  ^^^ 

iu  the  execution  of  the  sentence  (Sanh.  SS** ;  Maimon.  H.  Mam- 
rim  V,  13). 

■"»  Among  the  Romans,  flagellation  was  inflicted  on  a  crimi- 
nal as  a  prelude  to  crucifixion,  or  sometimes  on  a  slave  to 
gratify  the  caprice  or  cruelty  of  his  master.  The  whip  used 
to  punish  slaves  was  knotted  with  bones  or  heavy  indented 
circles  of  bronze,  or  terminated  by  hooks,  when  it  was  aptly 
called  a  scorpion  (Smith  445^). 

«"Sifre  II,  §  286;  Maceoth  22''.— In  Sparta,  the  ofi"ender  re- 
ceived this  punishment  {whipping  or  goading)  as  he  was  driven 
through  the  city  (Fiske  III,  §  128). 

«'  Tosefta  Maceoth  V,  §  12 ;  Sifre  II,  I  286 ;  Maceoth  22*.— 
As  the  spirit  of  moderation  and  clemency  pervades  all  Tal- 
mudic  penal  laws,  this  punishment  likewise  is  not  allowed  to 
be  carried  to  extremes,  Moses  prescribed  forty  stripes  as  the 
highest  number  (Deut.  XXV,  3) ;  but  the  Rabbis  took  ofi"  one. 
When  the  convict's  life  is  thought  to  be  endangered  by  this 
number,  a  less  number  is  apportioned,  which  must  not  be  in- 
creased, even  when  it  subsequently  appears  that  he  could  stand 
the  full  count  (Tosefta  1.  c.  §  13;  Maceoth  1.  c).  And  as  the 
lash  is  applied  over  the  shoulder-blades  and  chest,  the  number 
of  stripes  must  be  divisible  by  three ;  if  inadvertently  a  num- 
ber not  a  multiple  of  three  is  apportioned,  it  must  be  reduced 
to  render  it  divisible.  Thus  if  the  court  sentences  one  to  re- 
ceive twenty  stripes,  he  receives  eighteen  only  (Tosefta  1.  c.  § 
12 ;  Maceoth  1.  c. ;  Maimon.  1.  c.  2). 

*22  Maceoth  23^ ;  Maimon.  H.  Sanh.  XVII,  5  sq.  Cf.  supra 
§  121.  If,  however,  the  lash  breaks  at  the  first  stroke,  the 
sentence  is  not  considered  executed. 


REHABILITATION.  173 


6.  Eehabilitatton. 


§  140.  Persons  disqualified  from  bearing  witness, 
because  they  have  been  convicted,  or  are  violently 
suspected  of  misconduct,*^  may  be  rehabilitated 
either  by  submission  to  the  sentence  of  the  court,  or 
by  changing  their  mode  of  life,  so  as  to  manifest  un- 
mistakable evidence  of  genuine  reformation. 

§  141.  Those  convicted  of  a  misdemeanor,  the  pen- 
alty of  which  is  flagellation,*^*  are  rehabilitated  either 
after  receiving  their  sentence,  or  after  giving  an 
earnest  of  sincere  repentance  ;  *^  usurers,  after  reim- 
bursing their  payees  the  ill-gotten  rates,  and  promis- 
ing   never    more    to    take    usury  even    from    a  non- 


*»  Cf.  supra  §  78. 

*^*  Cf.  supra  n.  74. — Of  a  pardoning  power  no  trace  is  found 
in  Talmudic  law,  while,  on  the  contrary,  with  reference  to 
atrocious  crimes  against  society,  the  Eabbis  explicitly  forbid 
even  a  commutation  of  the  statutory  sentence  (Mekhilta  Xez., 
§  10,  et  al.  Cf.  supra  n.  405).  This  especially  applies  to  blood- 
shed, where,  even  if  the  ''avenger"  is  willing,  no  remission 
of  the  prescribed  punishment  is  admissible  (supra  n.  95),  for 
the  Kabbis  argue  that  the  life  of  man  belongs  to  God,  and  only 
the  law  of  God  may  dispose  of  it  (cf.  Maimon.  H.  Eozeah  I,  4, 
and  sources). 

*^  Yer.  Sotah  II,  §  1,  p.  17'*;  Maccoth  23^  "Having  submitted 
to  the  ruling  of  the  law,  he  is  thy  brother  as  before,"  says  the  Tal- 
mud. Hence  an  officer  having  been  found  guilty  of  a  trespass,  is 
not  removed  from  his  post,  however  exalted,  if  he  submits 
to  the  sentence  of  the  court ;  but  a  chief  of  a  Synhedrion,  or  a 
master  of  an  academy,  sentenced  to  flagellation,  is  removed  from 
his  office,  for  his  subordinates  or  disciples  would  no  longer  re- 
spect him  (Yer.  Sanh.  II,  §  1,  p.  lO''  bot. ;  ib.  Horayoth  III,  § 
2,  p.  47»). 


174  THE   EXECUTION. 

Israelite  ;  *^^  gamblers,  after  voluntarily  destroying 
their  apparatuses,  and  promising  in  the  future  not 
to  engage  in  such  occupation  even  for  mere  pas- 
time ;  suspects  of  all  kinds,  after  withstanding  great 
temptations  to  do  the  very  things  of  which  they  are 
suspected.*^ 


*»Sanh.  251';  Maimon.  H.  Eduth  XII,  5.    Cf.  Maimoniana 
ad  locem. 
*^  Sanli.  25»  sq. ;  Maimon.  H.  Eduth  XII,  6  sq. 


MAXIMS    AND    RULES. 

§  142.  ''Human  laws  are  born,  live  and  die,"  but 
a  maxim,  once  ushered  into  existence,  is  endowed 
with  a  perpetual  lease  of  life.  Its  form  is  often  so 
altered  as  to  be  irrecognizable,  but  its  spirit  continues 
to  live.  Many  a  modern  legal  maxim  which  enjoys  a 
wide  circulation  and  has  won  a  fortune  of  renown  for 
its  reputed  author,  is  in  reality  nothing  more  than  old 
currency  cast  in  a  new  die — the  gold  of  Moses  or  Sol- 
omon remodelled  and  embellished  with  the  royal  insig- 
nia of  Constantino  or  Justinian;  and  Ave  have  reason  to 
believe  that  many  a  maxim  brought  into  the  world  by 
a  Hillel  or  an  Akiba  is  now  current  under  the  super- 
scription of  a  Coke  or  a  Blackstone.*'^** — The  following 


***  The  production  of  a  few  Talmudic  maxims  with  their 
more  modern  analogues  will,  we  trust,  convince  the  reader 
of  the  probability  of  our  assumption.  The  rule  of  common 
law,  Nullus  commodum  capere  potest  de  wjuria  suapropria  (no  one 
shall  take  advantage  of  his  own  wrong),  which  Bouvier  (Diet., 
s.  v.  Maxim)  can  trace  back  no  further  than  to  Coke,  has, 
fifteen  hundred  years  before  that  jurist,  prompted  the  Tal- 
mudists  to  go  beyond  their  own  rules,  and  to  impose  extraor- 
dinary restrictions  and  amercements  on  parties  who  might 
otherwise  have  profited  by  their  personal  wrongs  (cf.  Hallah 
II,  §  7;  Yer.  ib.,  p.  58i;  Yeb.  92>';  B.  Kama  38^  et  al.).— To 
Coke  Bouvier  ascribes  the  maxim:  Quandn  aliquid  per  se  non  sit 
malum,  tamen  si  sit  mali  exempli,  non  est  faciendum  (when  any 
thing  in  itself  is  not  evil,  and  yet  may  be  an  example  for  evil, 
it  should  not  be  done).   Many  things,  indifterent  in  themselves, 

175 


176  MAXIMS    AND    RULES. 

are  some  of  the  most  important  maxims  and  rules, 
culled  from  the  jurisprudence  of  the  ancient  Hebrew 
sages. 

A  majority  of  one  is  sufficient  for  acquittal,  but  it 
requires  a  majority  of  at  least  two  for  conviction. 

A  man  is  his  own  kin. 

A  minor  has  no  discretion.*'^ 

are  forbidden  by  the  Rabbis,  only  because  they  might  serve  as 
examples  for  evil,  or  as  the  Talmud  expresses  it,  Mipj)ene  marith 
ayin  (for  appearances  sake. — Cf.  Sabbath  64^;  Beza  9^;  Ab. 
Zara  12%  et  al.). — Leonard  is  credited  with  the  authorship  of 
the  maxim:  Judici  satis  poena  est  quod  Deum  habet  ultorem  (It  is 
punishment  enough  for  a  judge  that  he  is  responsible  to  God). 
A  younger  contemporary  of  R.  Judah  I  (cf.  Appendix)  said, 
"AVhen  a  judge  sits  in  judgment,  he  should  feel  as  if  a  sword 
Avere  pointed  at  him  and  hell  were  open  beneath  him"  (Yeb. 
109*^;  Sanh.  7*). — In  an  English  law  book — we  cannot  recall 
which — we  have  seen  an  English  jurist  advancing  the  idea  that 
'a  judge  who  is  sued  and,  by  the  judgment  of  the  court,  is 
made  to  disgorge  money,  ought  to  be  judge  no  longer.'  This 
moral  maxim  which  is  much  older  than  the  oldest  writer  on 
Common  Law  and  of  Rabbinic  construction,  serves  well  to 
illustrate  the  evolutionary  character  of  some  maxims.  The 
Talmud  (B.  Bathra  58^)  records  the  fact  that  R.  Bannaa,  in  his 
capacity  as  associate  judge  in  Palestine,  under  Roman  Govern- 
ment, had  it  altered  to  its  present  form.  Originally  it  read : 
"The  judge  who  is  sued  ought  not  to  be  called  judge,"  to  which 
the  Rabbi  objected  as  being  unreasonable  and  dangerous,  since 
it  afforded  the  enemies  of  the  judge  easy  means  to  have  him  re- 
moved, and  he  proposed  to  amend  it  so  as  to  bring  it  within 
reason  and  right.  His  argument  was  declared  cogent,  and  the 
maxim  in  its  present  form  was  the  result. — But  enough.  In 
the  subjoined  analogues  culled  from  Bouvier  (1.  c),  most  of 
which  are  thought  to  be  not  older  than  Coke  or  Littleton,  the 
reader  will  find  further  proof. 

<»  Hence  he  is  doli  incapax,  and  not  amenable  to  capital  pun- 
ishment (cf.  §  50 ;  n.  183). 


MAXIMS    AND    RULES.  17T 

A  person  deserves  not  the  title  of  Man  before  reach- 
ing the  age  of  twenty-five  years. 

A  simultaneous  and  unanimous  verdict  of  guilty 
acquits. 

A  single  accuser  deserves  to  be  treated  as  a'  slan- 
derer.^" 

A  Synhedrion  executing  one  human  being  in  the 
course  of  every  seven  years  is  a  murderous   tribunal. 

A  verdict  of  conviction  may  be  reversed,  but  not 
one  of  acquittal.  *^^ 

A  verdict  of  guilty  may  not  be  rendered  on  the  day 
of  trial. 

All  evidence  must  be  direct,  and  not  circumstantial 
or  presumptive. 

All  Israelites  are  responsible  for  one  another.  *^^ 

An  equal  division  of  the  Court  on  a  verdict  is  an 
acquittal. 

As  Moses  sat  in  judgment  without  the  expectation 
of  material  reward,  so  also  must  every  judge  act  from 
a  sense  of  duty  only. 

Be  slow  in  judging. ^^ 

By  punishing  criminals  the  world  is  benefited. 

^  TJnius  omnino  testis  responsio  non  audiatur  (Let  not  the  testi- 
mony of  a  single  witness  be  heard  at  all),  was  the  maxim  in 
Civil  Law  where,  in  most  cases,  two  witnesses  were  required. 

*''  Nemo  debet  his  vexaripro  eodem  causa  (Xo  one  ought  to  be  twice 
vexed  for  the  same  cause),  is  tlie  maxim  of  modern,  as  it  was  of 
the  Roman  law. 

*^  Applied  to  moral  and  religious,  but  not  to  civil  or  crim- 
inal affairs  (cf.  n.  401). 

*^  Judicia  in  deliherationihus  crebro  matiiresciint,  in  accelerato  pro- 
cessu  nimquam  (Judgments  frequently  become  matured  by  delib- 
eration never  by  hurried  process). 
12 


178  MAXIMS   AND   RULES. 

Collisions  with  a  deaf-mutej  or  an  idiot^  or  a  minor, 
are  always  disadvantageous. 

Crimes  committed  under  duress  are  not  punish- 
able/3* 

Cross-question  the  witness  closely. 

Death  atones  for  sins.^^ 

Divulging  the  individual  opinions  of  judges  is 
slander. 

Drink  not  and  thou  wilt  not  sin.^^^ 

Each  witness  must  be  qualified  to  testify  to  the 
whole  case,  and  not  only  to  part  thereof. 

Evidence  must  he  heard  directly  from  the  mouth 
of  the  witnesses,  and  not  through  an  interpreter 
or  written  document. 

Extraordinary  times  legalize  extraordinary  punish- 
ments.*^^ 

Fine  and  flagellation  are  not  imposed  together  for 
the  same  oftense.*^^ 

For  conviction  it  requires  a  majority  of  not  less 
than  the  minimum  number  of  witnesses  competent  to 
sustain  an  accusation. 

Having  submitted  to  the  judgment  of  the  law,  the 
man  is  restored  to  his  status  as  thy  brother. 

'°*  ^jus  nulla  culpa  est  cui  parere  neeesse  sit  (Xo  guilt  attaches 
to  him  who  is  compelled  to  obey.     Cf.  supra  n.  47  and  168). 

^  Only  for  such  sins  as  are  offensive  to  God  alone.  Offenses 
against  man  must  be  atoned  for  otherwise  (cf.  sources  quoted  in 
n.  363). 

^3s  Omne  crimen  ehrietas  et  incendit  et  detegit  (Drunkenness  inflames 
and  reveals  every  crime). 

'°'  Crescenfa  malitia  creseere  debet  et  poena  (Vice  increasing,  pun- 
ishment ought  also  to  increase). 

^Wemo  bis  punitur  x>ro  eodem  delicto  (Xo  one  can  be  punished 
twice  for  the  some  misdemeanor). 


MAXIMS    AND    RULES.  179 

He  who  buys  a  Hebrew  slave  buys  himself  a  master. 

He  who  gives  the  death-blow  is  alone  responsible. 

He  who  swears  is  ipso  facto  suspected. 

If  one  witness  is  found  disqualified,  the  whole  party 
is  disqualified. 

Immodest  behavior  is  a  bar  to  the  witness-stand.'*^^ 

Judges  must  be  exceedingly  guarded  in  their  utter- 
ances, lest  the  witnesses  learn  from  them  how  to  answer 
evasively. 

Kill  him  who  unlawfully  attempts  to  kill  thee.''**' 

Let  justice  pierce  the  mountain. 

Let  the  incorrigible  die  while  in  a  state  of  compar- 
ative innocence,  rather  than  live  and  go  from  bad  to 
worse.  **^ 

Make  a  hedge  around  the  law. 

Man  is  to  live,  and  not  to  die  by  the  observance  of 
law. 

Man's  life  belongs  to  God,  and  only  according  to 
the  law  of  God  may  it  be  disposed  of. 

Neither  honor  nor  insult  the  remains  of  the  suicide. 

No  man  convicts  himself.**^ 

^  Qui  accusat  integrce  famcB  sit  (Let  him  who  accuses  be  of 
clear  fame). 

*•"  Quodcunque  aliquis  ob  tutelam  corporis  sui  fecerit  jure  idfecisse 
videtur  (Whatever  one  does  in  defense  of  his  person,  that  he  is 
considered  to  have  done  legally,     Cf.  supra  n.  113). 

•*•"  Nemo  pnidens  pumt  id  prceterita  revocentur,  sed  ut  futura  proe- 
veniantur  (No  wise  man  punishes  that  things  done  may  be 
revoked,  but  that  future  Avrongs  may  be  prevented.  Cf.  supra 
n.  184). 

*^  Allegans  suarn  turpitudinem  non  est  audiendus  (One  alleging 
his  own  infamy  is  not  to  be  heard.     Cf.  §  93). 


180  MAXIMS    AND    RULES. 

No  man  is  considered  guilty  until  after  he  is  duly 
proved  to  be  so. 

No  man  may  be  condemned  unless  lie  is  present. 

No  man  produces  witnesses  to  convict  himself. 

No  man  sinneth  unless  attacked  by  idiocy. 

No  mercy  may  be  shown  where  that  is  contrary  to 
justice. 

No  one  is  a  competent  witness  whose  knowledge  of 
the  facts  is  based  on  hearsay  or  conjecture.**^ 

No  one  is  responsible  for  the  crimes  of  another.*** 

No  punishment  may  be  inflicted  for  transgressions 
not  accomplished  by  bodily  action.**^ 

None,  but  the  legal  executioners,  may  execute  the 
convict. 

None  who  may  be  a  competent  witness  in  a  cause, 
may  be  judge  of  the  cause. **^ 

One  court  may  not  try  two  capital  cases  in  one 
day. 

Part  of  the  evidence  being  invalidated,  the  whole 
is  invalidated.**^ 

*^  Testis  occiilatus  unus  plus  valet  quam  auriti  decern  (One  eye- 
witness is  worth  ten  ear-witnesses). 

***  Nemo  jmnitur  pro  alieno  delicto  (Xo  one  is  to  be  punished  for 
the  wrongs  of  another,     Cf.  n.  401). 

*^  Les  lots  ne  sechargent  de  punir  que  les  actions  exterieures  (Laws 
do  not  undertake  to  punish  other  than  outward  actions).  But 
other  authorities  say,  In  atrociorihus  ddictis  punitur  affectus  licet 
non  sequater  effectus  (In  more  atrocious  crimes,  the  intent  is  pun- 
ished, though  the  effect  does  not  follow). 

««  Cf.  supra  n.  143,  293. 

**'  Falsus  in  una  falsus  in  omnibus  (False  in  one  thing,  false  in 
every  thing). 


MAXIMS    A^'D    RULES. 


181 


Kelations  and  interested  persons  may  not  act  as 

judges.**^ 

Self-accusation  does  not  convict. 

Self-accusation  of  misdemeanors  involving  fines 
exempts  the  culprit  from  paying  the  fine.**' 

Similarity  in  expressions  between  witnesses  awakens 
suspicion  of  conspiracy  and  coaching. 

Testimony  must  not  be  heard  in  the  absence  of  the 
party  concerned. 

Testimony  to  which  the  law  of  confutation  cannot 
be  fully  applied  deserves  not  the  name  of  testimony. 

The  blood  of  the  victim  of  false  testimony  and  that 
of  his  lost  progeny  falls  upon  the  heads  of  the  wit- 
nesses. 

The  act  of  breaking  in  is  the  burglar's  death  war- 
rant. 

The  cause  of  a  party  may  not  be  disposed  of  m  his 

absence. 

The  convict  must  not  be  kept  in  suspense. 

The  drunkard  is  responsible  for  his  actions.*"* 

The  end  of  a  period  is  considered  as  the  beginning 
thereof. 

The  hour  legalizes  extraordinary  rigor. 


451 


««  Nemo  sibi  esse  judex  vel  suis  jus  direre  debet  (No  man  ought 
to  be  his  own  judge,  or  to  administer  justice  in  cases  where  his 
relatives  are  concerned). 

«9  Cum  comftente  sjjonte  mitius  est  agendum  (One  makmg  a  vol- 
untary confession  is  to  be  dealt  with  more  mercifully). 

«o  Quipeccat  ebrius,  luat  sobrius  {He  who  offends  when  drunk 
must  be  punished  when  sober.     Cf.  supra  §  48). 

^1  Crescerda  malitia  crescere  debet  et  poena  (Vice  increasing,  pun- 
ishment ought  also  to  increase). 


182  MAXIxMS    AND    RULES. 

The  judge  has  nothing  to  judge  by  but  what  is  be- 
fore his  eyes.*^^ 

The  judge  not  voting  is  considered  absent. 

The  judgments  for  which  the  judge  was  paid  are 
void. 

The  law  does  not  punish  for  injuries  occasioned 
through  fortuitous  circumstances.**' 

The  less  punishment  is  discharged  in  the  greater. 

The  person  witnessing  an  act  during  his  minority  is 
not  competent  to  testify  thereto,  even  after  reaching 
his  majority. 

The  public  servitor  must  be  possessed  of  more  men- 
tal than  physical  vigor. 

The  robe  of  the  unfairly  elected  judge  is  to  be  re- 
spected not  more  than  the  blanket  of  the  ass. 

The  scholar's  popularity  with  the  masses  is  not 
always  the  reward  for  righteous  bearing  ;  often  it  is 
the  consequence  of  his  failing  to  notice  vices  and  re- 
buke them. 

The  suborned  witness  is  despised  even  by  his 
suborner. 

The  Supreme  Judge  does  not  punish  a  person  of 
less  than  twenty  years. 

The  votes  of  father  and  son,  or  of  teacher  and  pupil, 
in  the  same  court,  are  counted  as  one. 

*^  Non  refert  quid  notuni  sitjucUci,  si  notuin  non  sit  in  forma  judici 
(It  matters  not  what  is  known  to  the  judge,  if  it  is  not  known 
to  him  judicially). 

■"^  Casus  fortuitus  non  est  sperandus,  et  nemo  tenetur  divinare  (A 
fortuitous  event  is  not  to  be  foreseen,  and  no  person  is  held 
bound  to  divine  it.     Cf.  supra  §  35). 


MAXIMS    AND    RULES.  183 

The  witness  must  be  fully  competent  at  the  time 
when  the  crime  is  committed  as  well  as  when  he  ap- 
pears to  testify  to  the  crime. 

The  witnesses  for  the  defense  are  accusers  of  the 
prosecution.*" 

The  word  of  the  parties  to  the  suit,  and  not  that  of 
counsel,  shall  he  heard  by  the  judges. 

There  is  no  agency  in  crime. *^^ 

Thine  own  life  may  be  dearer  to  thee  than  that  of 
thy  neighbor.*^ 

Thoughts  are  not  punishable.**^ 

What  the  witness  has  once  said  he  may  not  unsay. 

Whatever  one  observes  while  in  a  normal  state, 
and  testifies  to  when  in  a  normal  state  is  legal 
evidence. 

When  one  can  prevent  a  crime  and  does  not,  he  is 
responsible  before  Heaven.**^ 

When  the  judge  is,  like  a  king,  well  provided  for, 
he  will  establish  the  peace  of  the  land  on  justice  ;  but 
when,  like  the  priest,  he  must  rely  on  gifts  for  his 
subsistence,  he  will  overthrow  it. 

Where  Heaven  sees  fit  to  condone,  human  tribunals 
,  may  not  punish. 

***  Ecus  excipiendojit  actor  (The  defendant  by  a  plea  becomes 

plaintiflf)- 

*^  Quod  per  me  non  possum,  nee  per  alium  (What  I  cannot  do  in 
person  I  cannot  do  through  the  agency  of  another.     Cf.  n.  155). 

*'^  Ignoscitur  ei  qui  sanguinem  suum  qualiter  redemptum  voluit  (The 
law  holds  him  excused  who  chose  that  his  blood  should  be  re- 
deemed on  any  terms. ) 

*^'  Cogitationis  poenam  nemo  patitur  (Xo  one  is  punished  for  his 
thoughts.— Cf.  n.  36). 

^"^  Qui  non  obstat  quod  ohstare  potest  facere  videtur  (He  who  does 
not  prevent  what  he  can,  seems  to  commit  the  thing). 


184  MAXIMS   AND    RULES. 

Where  there  are  officers  to  enforce  the  judgment, 
there  judges  can  act,  but  where  there  are  no  officers, 
there  can  he  no  judges. 

Whosoever  compassionates  a  human  being  obtains 
compassion  from  Heaven. 

Whosoever  preserves  one  worthy  life  is  as  meritori- 
ous as  if  he  had  preserved  the  world. 

Whosoever  will  not  tell  the  truth  without  an  oath, 
would  not  scruple  to  assert  falsehood  with  an  oath. 

Wisdom  increases  with  age. 


CONC     USION. 

§  143.  In  the  foregoing  pages,  an  analysis  is 
offered  of  the  system  of  criminal  jurisprudencej  as  it 
is  preserved  in  the  Talmud  and  other  ancient  Rab- 
binic writings.  In  its  spirit  and  its  letter,  in  its  sub- 
stance and  its  form,  it  is  eminently  considerate  and 
humane,  if  not  always  practical.  It  very  favorably 
compares  with  the  codes  of  the  most  civilized  coun- 
tries of  our  day,  and  by  far  surpasses  the  systems  of 
Greece  and  Rome,  after  which  the  former  are  often 
modelled.  The  lofty  spirit  of  the  Mosaic  legislation, 
which  has  confessedly  exercised  an  influence,  benign 
as  extensive,  wholesome  as  permanent,  over  the  doc- 
trines of  mankind,  breathes  through  it  all  ;  and 
although  in  following  up  their  own  maxim  :  "  Make 
a  hedge  around  the  law,"  the  Rabbis  built  up — to  use 
Dean  Stanley's  expression — "elaborate  explanations, 
thorny  obstructions,  subtile  evasions,  enormous  de- 
velopments, till  the  Pentateuch  was  buried  beneath 
the  Mishna,  and  the  Mishna  beneath  the  Guemara," 
they  never  for  a  moment  lost  sight  of  the  dignity 
of  man  and  the  principles  of  humanity,  of  the  rights 
of  the  individual  and  the  welfare  of  society,  of  the 
majesty  of  justice  and  the  divine  attribute  of  clem- 
ency. 

§  144.  The  authors  of  this  system  of  criminal  juris- 
prudence, the  ancient  Jewish  scholars,  legislators  and 
judges,  who  paid  so  much  regard  to  human  life,  who 

185 


186  CONCLUSION. 

fought  80  bravely  and  so  successfully  against  every 
outrage  on  human  dignity,  in  the  face  of  all  contem- 
poraneous class-legislation  and  atrocious  tyranny — as, 
I  believe,  I  have  abundantly  demonstrated  in  these 
pages, — these  very  Hebrew  sages  are  the  so  much  de- 
cried Pharisees  whom,  for  nearly  two  thousand  years, 
the  Christian  world  has  stigmatized  as  "cruel,  vindic- 
tive, sanguinary."  If  I  have  succeeded  in,  at  least 
partly,  proving  that  they  do  not  deserve  such  opprobri- 
ous epithets  ;  if  I  have  succeeded  in  awakening  in  some 
breast  a  just  determination  not  to  condemn  so  great 
and  so  imj^ortant  a  literary  repository  as  the  Talmud, 
before  examining  its  contents,  I  am  amply  repaid  for 
my  labor,  and  can  close  with  Wines's  exclamation  : 
''  Thanks  be  to  Grod  for  that  rainbow  of  promise,  with 
which  the  civil  polity  of  Moses  has  spanned  the  polit- 
ical heavens ! " 


APPENDIX. 


The    Talmud. 


The  following  sketch  appeared  originally  in  the 
South  Atlantic  Monthly  (July  and  August,  1878). 
As  a  fit  supplement  to  the  Criminal  Jurisprudence 
which  is  preserved  mainly  in  the  Talmud,  it  is  here 
reprinted,  with  some  few  additions,  but  without 
material  alterations. 


187 


THE  TALMUD. 


The  most  ponderous  work  in  ancient  or  modern  lit- 
erature is  that  comprising  the  teachings  of  the  an- 
cient Hebrew  sages,  and  known  as  the  Talmud.  This 
gigantic  compilation^  has  a  peculiar  history  of  its 
own,  and  by  it  the  old  adage,  Habent  sua  fata  libelli 
(even  books  have  their  peculiar  fates)  has  been  well 
illustrated.  How  checkered  has  been  its  career  dur- 
ing the  last  fourteen  centuries, — how  diversified  its 
course  since  Rabh  Ashi  and  Rabh  Abina  compiled 
and  systematized  it!  While  at  times  it  excited 
praise  and  admiration,  and  attracted  to  its  almost 
inexhaustible  stores  of  wit  and  wisdom  the  most 
cultivated  minds  of  whole  generations,  it  was,  at 
others,  but  too  frequently  made  a  target  for  poison- 
ous arrows,  held  up  to  mockery  and  to  derision, 
and  repeatedly  proscribed,  confiscated  or  destroyed. 
Influenced  by    hierarchical   fanaticism,  the  enemies 

'  Modern  editions  of  the  Talmud,  including  the  most  impor- 
tant commentaries,  consist  of  about  3000  folio  sheets,  or  12,000 
folio  pages  of  closely  printed  matter,  generally  divided  into  12, 
or  20  volumes.  One  page  of  Talmudic  Hebrew  intelligibly 
translated  into  English  would  cover  three  pages;  the  transla- 
tion of  the  whole  Talmud  with  its  commentaries  would,  ac- 
cordingly, make  a  library  of  400  volumes,  each  numbering  360 
octavo  pages. 

189 


190  APPENDIX. 

of  free  conscience,  of  free  religion  and  of  free  thought, 
in  France,  in  Italy  and  in  other  European  countries, 
condemned  the  Talmud  as  heretical,  and  consequently 
sentenced  it  to  the  ignominious  end  of  the  heretic. 
This  was  especially  the  case  during  the  dark  Middle- 
Ages,  when  prelates,  from  their  thrones,  thundered 
forth  anathemas  against  every  idea  which  did  not 
exactly  coincide  with  their  own,  and,  by  means  of 
inflammatory  bulls  and  edicts,  caused  all  books  named 
in  the  voluminous  ''Expurgatory  Index,"  to  be  burned 
publicly.  Among  them  was  not  only  the  Talmud,^  but 
even  the  Bible,  written  or  printed  in  the  original 
tongue. 

Paradoxical  as  this  may  seem,  yet  it  is  a  fact  that 
those  learned  divines  who  raised  their  voices  against 
"  the  'heresies  '  of  the  Talmud,"  were,  as  a  rule,  en- 
tirely ignorant  of  the  real  contents  of  the  Talmud, 
and  condemned  it  solely  on  hearsay  or  on  the  basis 
of  some  quotation,  generally  ill-selected,  mutilated 
and  distorted.^      Indeed,  some  of  those    "defenders 

'  Within  a  period  of  less  than  50  years — and  these  forming 
the  latter  half  of  the  sixteenth  century, — it  was  publicly  burnt 
no  less  than  six  diiferent  times,  and  that  not  in  single  copies, 
but  wholesale,  by  the  wagon-load.  Julius  III  issued  his  proc- 
lamations against  what  he  grotesquely  calls  the  "Gemaroth 
Talmud  "  in  1553  and  1555,  Paul  IV  in  1559,  Pius  V  in  1566, 
Clement  VII  in  1592  and  1599  (cf.  Deutsch,  The  Talmud,  Lon- 
don Quarterly  Review,  Oct.,  1867). 

*  "  It  is  easy  to  make  quotations  which  may  throw  an  odium 
over  the  whole.  But  fancy  if  the  production  of  a  thousand 
years  of  English  literature,  say,  from  the  'History'  of  the  ven- 
erable Bede  to  Milton's  'Paradise  Lost,'  were  thrown  together 
into  a  number  of  uniform  folios,  and  judged  in  like  manner ;  if 


THE    TALMUD.  191 

of  the  faith"  did  not  even  know  that  the  Talmud 
is  a  collection  of  books.  Henricus  Segnensis,  a 
pious  monk,  having  heard  a  great  deal  about  the 
heretical  Talmud,  took  it  to  be  a  person,  and  swore 
that  he  would  ere  long  have  liiin — the  Talmud ! — put 
to  death  by  the  hangman  !— And,  although  we  live  in 
an  age  far  advanced  and  greatly  enlightened,  when 
scholars  regard  every  literary  production,  religious  or 
secular,  as  part  and  parcel  of  human  learning  ;  al- 
though modern  theologians  and  Orientalists  study  the 
Talmud  not  merely  with  the  intention  of  refuting 
some  of  its  doctrines,  but  often  with  that  of  bringing 
to  light  some  of  its  vast  stores  of  knowledge  ;  al- 
though this  great  work  is  frequently  referred  to  in 
almost  every  branch  of  science,  particularly  in  the- 
ology, Biblical  criticism,  and  in  sacred  geography, — 
yet  even  to  the  majority  of  literary  men  it  continues 
to  be  "as  a  sealed  book,"  known  by  name  only. 

In  the  following  pages  we  propose  to  furnish 
sketches  of  the  lives  of  some  of  its  foremost  authors, 
of  the  course  of  its  composition  and  compilation,  as 
well  as  a  bird's  eye  view  of  its  contents. 


The  Mishnah. 

The  origin  of  Talmudic  lore  is,  like  "the  origin  of 
Common  Law,  as  undiscoverable  as  the  head  of  the 

because  some  superstitious  monks  wrote  silly  'Lives  of  Saints,' 
therefore  the  works  of  John  Bunyan  should  also  be  consid- 
ered worthless.  The  absurdity  is  too  obvious  to  require  com- 
ment" (Alexander,  The  Jetvs). 


192  APPENDIX. 

Nile."  Kabbinism  claims  for  it  hoary  antiquity,  as- 
serting that  it  was  synchronous  with  the  proclama- 
tion of  the  Decalogue.^  This  antiquity  some  ascribe 
to  the  whole  mass  of  traditional  laws/  others  to  the 
principles  only  upon  which  the  Eabbinic  disquisitions 
are  based.  ^  But  whether  its  origin  is  coeval  with 
Moses/  or  not,  certain  it  is  that  traces  of  traditions 
are  to  be  met  with  at  an  early  stage  in  Israel's 
history,  and  Ezra  is  their  reputed  foster  father  who, 
in  conjunction  with  his  coadjutors,  the  men  of  the 
Great  Assembly  {Ecdesia  Magna),  delivered  them  to 
the  mass  of  the  people  on  their  return  from  Baby- 
lonian captivity.^ 

The  age  of  Ezra  and  his  associates,  as  well  as  that 
of  their  immediate  successors,  is  known  as  the  age  of 
the  Soferim  (scribes),  which  ended  with  Simon  Jus- 
tus (about  200  B.  C.  E.)  and  was  followed  by  that 
of  the  HaMiamim  (wise  men,  scholars)  or  Zugoth 
(pairs,  duumviri).  In  the  schools  of  this  age  the 
"Oral  Law"  received  remarkable  impetus  and  develop- 
ment. The  heads  of  these  schools  were:  Antigonus 
of  Sokho;  Jose  of  Zereda  and  Jose  of  Jerusalem,  Josh- 
ua ben  Perahia  and  Nittai  the  Arbelite,  Judah  ben 

'  Sifra  Behuckothai,  end ;  Berakhoth  6*;  Megillah  IQ''. 

^  Yer.  Hagiga  I,  §  8,  p.  76<i ;  Ex.  R.  c.  47. 

3  Ex.  E.  c.  41. 

*  It  is  claimed  that  thousands  of  oral  rules  {Halakhoth)  were 
buried  with  him  (Temurah  16^), 

5  Succah  20^  et  al. — Farrar  says :  Ezra  "carried  on  the  silent 
revolution  in  Jewish  conceptions  of  which  the  last  eight  chap- 
ters of  Ezekiel  are  the  indication,  and  which  find  expression 
also  in  the  book  of  Chronicles"  ^Hist.  of  Interpretation,  p. 
52). 


THE    TALMUD.  193 

Tabbai  and  Simon  ben  Shettah,  kSheniaiah  and  Ab- 
talion.  Each  of  these  contributed  his  share  towards 
enlarging  the  sphere  of  the  oral  law,  which,  however, 
reached  a  most  flourishing  stage  at  the  time  of  the 
rise  of  the  rival  schools  of  Hillel  I  and  Shammai,  in 
the  reign  of  Herod.  The  sayings,  teachings,  doc- 
trines, elucidations,  decisions  of  these  schools  were 
delivered  orally,  and  in  the  progress  of  time  became 
so  numerous  and  extensive  that,  according  to  the 
statements  of  later  Talmudists,^  between  six  hundred 
and  seven  hundred  books  could  be  made  of  them. 
They  followed  each  other  so  promiscuously  that  it 
was  an  utter  impossibility  to  retain  them  in  one's 
memory,  or  to  refer  to  them  at  will.  Hillel  therefore 
collected  and  assorted  them,  and  arranged  them  in. 
proper  order,  reducing  the  whole  mass  to  six  books 
or  orders.^ 

Hillel,  the  Great. 

Notwithstanding  that  a  great  accumulation  of  lite- 
rary matter  is  said  to  have  come  down  to  Hillel,  but  little 
that  is  authentic  has  come  down  to  us  from  his  prede- 
cessors. He  may  be,  and  generally  is,  considered  the 
first  whose  critical  and  paleographical  remarks  on  th<e 
Bible  have  been  transmitted  in  his  name.  They  were 
originally  either  noted  down  on  the  margin  of  his 
scrolls,  or  delivered  orally,  and  preserved  in  the  mem- 
ory of  generations  and  ages  down  to  the  eleventh  cen- 

'  Hagiga  14». 

2  Beth  Habehirah  ad  Aboth ;   De  Lates,  Shaare  Zion ;  Yuha- 
sin  s.  V.  Hillel. 
13 


194  APPENDIX. 

tury,  when  they  were  collected  and  arranged,  together 
with  those  of  other  sages,  under  the  title  of  Masorah 
(tradition). 

According  to  Hillel,  two  sources  poured  forth  an 
unbroken  stream  of  oral  law.  The  first  of  these  was 
tradition,  transmitted  from  mouth  to  mouth,  from  gen- 
eration to  generation,  its  authenticity  guaranteed  by 
the  trustworthiness  of  those  who  delivered  it.^     But  as 


'  The  existence  of  some  traditional  elucidations  of  Bibli- 
cal precepts,  in  the  early  days  of  Israel's  commonwealth,  is 
argued  from  the  necessity  arising  from  tlie  abstruseness  of  many 
a  Biblical  ordinance,  as  well  as  from  the  varied  and  intricate 
situations  of  life.  A  few  examples  will  suffice  to  illustrate 
this.— The  Bible  (Lev.  XVI,  29;  ib.  XXIII,  27  sq.)  ordains 
that  on  the  tenth  day  of  the  seventh  month  (the  Day  of  Atone- 
ment), all  Israelites  shall  afflict  their  souls,  but  it  does  not 
state  by  what  proces><  this  affliction  shall  be  accomplished. 
Tradition  declares  it  to  be  the  suspension  of  all  carnal  enjoy- 
ment, especially  of  eating  and  drinking,  i.  e. /as/jHg' (Sifra  Emor 
c.  14;  Toma  74").  Again,  the  Bible  (1.  c.  XXIII,  40)  prescribes 
that,  'on  the  first  day  of  the  Feast  of  Booths,  fruit  of  the  hadar 
tree  be  taken ;'  but  it  does  not  define  the  genus  of  the  tree.  Tra- 
dition— supported  by  the  various  meanings  of  the  term  lianar 
(which  is  generally  rendered  goodly^  orjiamental.,  but  by  changing 
its  punctuation  may  be  made  to  correspond  to) :  growing  at  the 
toatersidc,  perennial,  ovate — declares  it  to  be  the  one  called 
Ethrog  (citron,  citrus  medica, — cf.  Josephus  III  Antiqu.  X,  5 ; 
XIII.  XIII,  5),  which  possesses  all  these  characteristics  (Sifra 
1.  c,  c.  16;  Succah  35*).  And  again,  the  Bible  (1.  c.  XXIII,  3) 
prohibits  all  manner  of  work  on  the  Sabbath  daj' ,  but  does  not 
define  what  work  means.  Moreover,  as  if  to  render  the  riddle 
more  difficult  of  solution,  the  Bible  explicitly  mentions  several 
engagements  as  forbidden  (Ex.  XVI,  29;  ib.  XXXV,  3;  Num. 
XV,  32).  Wherefore  it  requires  some  tradition  to  tell  us  which 
works  are  forbidden,  and  tradition  does  it.     Tradition  counts 


THE    TALMUD.  195 

this  consisted  of  finished  transactions,  of  schemata 
complete  in  themselves  and  incapable  of  expansion,  and 
therefore  insufficient  for  the  varied  and  intricate  sit- 
uations of  life/  necessity  suggested  another  source: 
rules  by  means  of  which  new  Halalclioth  (decisions) 
could  be  deduced  either  from  some  Scriptural  allu- 
sion, or  from  former  decisions,  based  on  tradition  or 
on  Scripture.  He  accordingly  elaborated  seven  her- 
meneutic  rules,  by  the  apj)lication  of  which  a  Mosaic 
law  might  be  variously  explained,  and  statutes  and 
ordinances,  answering  the  requirements  of  every  age 
and  condition,  deduced  therefrom.  These  rules  are: 
1,  The  inference  from  major  to  minor,  and  vi<-e  versa, 
from  minor  to  major;  2,  The  inference  from  agree- 
ment or  similarity  of  phrases  used  in  different  texts; 
3,  The  inference  from  the  principal  idea  underlying 
one  Scriptural  verse,  or  two  verses;  4,  The  inference 
from  the  contrast  existing  between  the  general  de- 
scription of  a  subject  and  its  specified  particular;   5, 


the  number  of  times  that  the  term  Melaklmh  (work)  is  repeated 
in  the  Pentateuch,  and  finding  it  to  be  tliirty-nine,  and  corre- 
sponding to  that  of  the  different  forms  of  work  practised  in 
raising  the  Tabernacle,  declares  that  all  forms  of  work  prac- 
tised on  that  occasion  and  numbering  thirty-nine,  are  forbidden 
on  the  Sabbath  (Sabbath  49";  ib.  TS";  Yer.  ib.  VII,  §  2,  p.  40" 
hot.). 

'  Cf.  Jurisprudence,  n.  33.  We  all  know  by  experience,  that 
a  law,  though  very  minutely  and  exactly  defined,  may  yet  be 
susceptible  of  various  interpretations,  and  question  upon  ques- 
tion is  sure  to  arise  when  it  comes  to  be  applied  to  the  ever- 
varying  circumstances  of  life.  Hence  we  find  Moses  himself 
perplexed  as  to  the  proper  term  of  the  law  in  certain  cases 
(Num.  IX.  8;  ib.  Xy,  33). 


196  APPENDIX. 

From  a  particular  expression  followed  by  a  general 
one;  6,  The  inference  from  a  correspondence  of  cir- 
cumstances; and  Tj  By  induction  from  the  context.^ — 
Thus  Hillel  gave  a  peculiar  cut  and  cast  to  Juda- 
ism, perfecting  and  firmly  establishing  its  judicial 
character;  at  the  same  time  he  created  a  particular 
theory,  a  kind  of  Jewish  theology,  or  more  correctly  a 
nomology  (science  of  the  religious  law).^ 

By  the  application  of  his  own  rules,  Hillel  estab- 
lished a  proviso,  which  suspended  an  express  Biblical 
precept.  According  to  the  Bible  (Deut.  XV,  1-2)  the 
creditor  was  bound  to  release  all  his  outstanding  loans 
of  money  at  the  end  of  every  seventh  year,  termed 
Sh'mittah  (=release).  In  the  course  of  time,  however, 
this  precept  became  impracticable,  detrimental  to  the 
welfare  of  society  in  general,  and  of  those  whom  it  in- 
tended to  benefit  in  particular.  The  poor  man  stood 
in  need  of  money-loans  which  the  capitalist  refused  to 
grant,  lest  the  Shemittah  year  will  find  the  loan  not 
repaid,  and  oblige  him  to  relinquish  his  claim.  In 
order  to  obviate  this  danger  threatening  the  econ- 
omy of  the  country,  Hillel  established  a  new  law,  to 


'  Aboth  de  R.  Nathan  XXXVII. — These  rules  were,  about  a 
century  later,  increased  by  R.  Ishmael  to  thirteen ;  and  still 
later  R.  Elazar  b.  Jose  added  nineteen  more,  making  a  total  of 
thirty-two. — One  of  the  Rabbis  ridiculed  the  application  of  the 
inference  from  major  to  minor  by  suggesting  the  following 
paralogism :  If  the  marriage  with  one's  own  daughter  is 
prohibited,  although  the  marriage  with  her  mother  is  legal, 
how  much  more  should  it  be  unlawful  to  marry  another 
man's  daughter,  the  marriage  with  her  mother — a  married 
^voman — being  strictly  forbidden  !     (Derekh  Eretz  Rabba  I). 

»  Graetz  IV,  c.  1. 


THE   TALMUD.  197 

wit:  If  the  creditor,  before  tlie  beginning  of  the  Sh'mit- 
tah  year,  enters  his  claim  at  a  regular  court,  then 
shall  the  Sh'mittah  year  not  extinguish  the  debt.^ 
This  law  he  derived  from  the  Scriptural  dicta  institu- 
ting the  Sh'mittah.  "This  is  the  manner  of  the 
Sh'mittah  (release)  :  Every  creditor  that  lendeth  shall 
release."  In  this  passage,  reasons  the  sage,  the  term 
release  occurs  twice  ;  in  the  first  instance  it  applies 
to  the  release  of  land,  in  the  second  to  that  of  money. 
But  since  the  same  term  is  used  in  both  instances,  its 
operation  too  must  be  the  same  in  both  instances. 
Hence  we  infer  that  the  prime  intention  of  the  law 
was  to  make  it  dependent  on  the  soil  ;  as  long  as  one 
is  bound  to  release  the  soil,  i.  e.,  as  long  as  the  Jew- 
ish law  governs  the  land,  so  long  is  one  bound  to  re- 
lease loans  ;  but  when  the  law  of  release  is  not  appli- 
cable to  land — as  when  Judea  is  under  Roman  rule — it 
no  longer  has  validity  with  reference  to  personal  prop- 
erty.^ 

The  study  of  the  law  was  taught  by  Hillel  to  be  of 
paramount  importance.  His  favorite  maxims  were  : 
"He  who  doth  not  increase  his  knowledge,  dimin- 
isheth  it  ;  he  who  doth  not  study,  deserveth  death, 
and  he  who  useth  the  crown  of  the  law  [for  his  per- 
sonal aggrandizement]  will  perish."^  Nor  did  he 
merely  advocate  these  ideas  ;  he  exemplified  them  in 

'  Its  eflfect  was  the  same  as  is  that  of  the  modern  law  suspen- 
ding the  operation  of  the  "Statute  of  Limitation",  where  suit 
had  been  entered  prior  to  the  expiration  of  the  time  within 
which  the  law  does  not  consider  a  debt  extinguished. 

•  Shebiith  X,  §§  3-5  ;  Guittin  36^ 

3  Aboth  I,  §  13. 


198  APPEXDIX. 

himself.  Although  he  labored  under  great  difficul- 
ties, he  persevered  until  he  gained  admittance  into  col- 
leges, and  succeeded  in  advancing  in  his  studies.  It 
is  related  that  when  he  first  came  from  his  native 
country,  Babylon,  to  Jerusalem,  he  was  so  poo- 
that  he  was  obliged  to  resort  to  manual  labor  and 
drudgery  for  means  of  subsistence.  His  small  earn- 
ings (a  tropa'icon  per  diem)  he  expended  partly  for  food 
and  i^artly  in  admission  fees  to  the  door-keeper  of  the 
academy,  where  Shemaiah  and  Abtalion  instructed 
their  pupils.  On  a  certain  winter-solstice  day  he 
failed  to  find  work  ;  and  as  he  could  not  pay  the  re- 
quired entrance  fee,  the  door-keeper  would  not  admit 
him  into  the  college.  But  so  eager  was  Hillel  to  hear 
the  two  great  teachers,  so  quenchless  was  his  thirst  for 
the  knowledge  of  the  law,  that  he  stood  near  the  window 
attentively  listening,  without  taking  notice  that  a 
heavy  fall  of  snow  had  commenced.  At  length  his 
limbs,  numbed  with  cold,  failed  him,  and  he  fell  in- 
sensible to  the  ground,  where  his  body  was  soon  cov- 
ered by  the  snow.  As  the  heap  thus  formed  before  the 
window  obscured  the  light,  it  attracted  Shemaiah 's 
attention,  and  on  examining  the  cause,  Hillel's  ap- 
parently lifeless  body  was  discovered.  He  was  carried 
into  the  hall,  and  attended  to  until  he  revived  and  ac- 
counted for  the  occurrence.^  After  this  he  had  no 
more  trouble  with  college  door-keepers.  The  chiefs 
admitted  him  as  a  regular  listener  to  their  lectures, 
and  provided  for  his  bodily  need  as  well. 


'  Yoma  SS"*.     Ever  since,  the  Kabbis  say,  the  ignorant  poor 
are  condemned  by  hi.s  example. 


THE    TALMUD.  199 

Endowed  with  extraordinary  talent  and  keen  facul- 
ties, Hillel  rapidly  acquired  great  stores  of  knowl- 
edge, and  became  one  of  the  highest  authorities  on 
traditional  law.  Indeed,  he  soon  surpassed  the  great 
teachers  of  his  day,  and  rose  to  be  a  renowned  master. 
Once  an  important  religious  question  was  debated  in 
the  college,  and,  of  all  the  sages,  Hillel  alone  was  in 
possession  of  authentic  traditional  information  bear- 
ing on  the  subject,  and  his  declaration  settled  the 
question.  Thenceforth  he  was  looked  upon  as  the 
most  prominent  figure  in  the  academy,  and  the  great- 
est pillar  of  oral  law.  He  was  ultimately  elevated 
to  the  presidency  of  the  Synhedrion,^  in  which  office 
he  continued  for  a  considerable  number  of  years,  to 
the  end  of  his  useful  and  glorious  life. 

That  Hillel  was  held  in  high  esteem  was  owing  not 
alone  to  his  great  erudition  and  progressive  spirit, 
but  also  to  his  excellent  character  and  friendly  dispo- 
sition. ''Be  of  the  disciples  of  Aaron  :  loving  peace 
and  pursuing  it  ;  love  all  men,  and  thus  bring  them 
under  the  influence  of  the  law",^  was  his  rule  of  con- 

>  Pesahim  66%  Yer.  ib.  lY,  §  ,  p.  33^  Later  sages  therefore 
compare  him  to  Ezra,  for,  like  him,  he  recalled  the  law  to  the 
memory  of  his  people  (Succah  20^). 

^  Aboth  I,  §  12. — His  patience  is  illustrated  by  the  following 
anecdote.  A  man  wagered  four  hundred  diriars  against  an  equal 
sum  that  he  would  provoke  Hillel  to  anger.  He  hastened  to 
the  sage's  residence,  on  a  Friday  afternoon,  while  the  Eabbi  was 
preparing  himself  for  the  Sabbath,  and  unceremoniously  ap- 
proached the  bath-room  and  called,  in  a  loud  voice,  "  Is  Hillel 
here?  Is  Hillel  here?'-  without  even  adding  the  title.  The 
Prince,  for  such  was  he  in  Israel,  dressed  himself  quickly,  and 


200  APPENDIX. 

duct,  and  by  it  he  attracted  to  himself  a  numerous 
following,  even  from  among  the  "  strangers. "     Here 

meeting  the  intruder,  kindly  inquired,  "  What  is  thy  desire,  my 
son  ?  "  Whereupon  the  stranger  replied,  "  I  wish  to  ask  you  a 
question."  ''Go  on,  my  son;  ask,'"  ''Well,"  said  the  in- 
truder, "I  desire  to  know  why  the  Babylonians  have  pointed 
heads?"  To  this  Hillel  answered,  "It  is,  indeed,  a  very  im- 
portant question.  The  fault  lies  with  their  foolish  and  ignor- 
ant midwives."  With  this  the  Eabbi  returned  to  his  occupa- 
tion, while  the  man  left  the  apartment,  but  soon  returned, 
again  crying,  "Where  is  Hillel?  Where  is  Hillel?"  Again 
the  Eabbi  wrapped  himself  in  his  cloak,  and,  on  perceiving 
the  same  man,  inquired,  "What  now,  my  son?  What  is 
thy  wish?  "  ''I  came  for  an  answer  to  the  question,  why  the 
Thermedeens  have  weak  ej^es?"  "This  is  a  very  important 
question,  my  son.  The  reason  of  this  phenomenon  is  that  they 
live  in  sandy  regions,  and  the  wind  drives  the  sand  into  their 
eyes  and  makes  them  dull."  Disappointed  for  the  second  time, 
the  tempter  departed,  but  soon  re-entered,  with  his  usual  uncer- 
emonious inquiry,  "Where  is  Hillel?"  whom  he  asked  to  ex- 
plain the  reason  why  the  Africans  have  broad  feet.  The  Rabbi 
again  magnified  the  importance  of  the  problem,  and  then  re- 
plied, "It  is  because  they  live  on  marshy  land  and  walk  bare- 
footed." 

"I  might  ask  you,"  continued  the  stranger,  "many  more 
questions,  but  fear  that  you  will  grow  angry."  Hillel  adjusted 
his  cloak,  seated  himself  and  said,  "  Whatever  question  thou 
hast,  ask."  "Art  thou,"  indignantly  queried  the  stranger; 
"  art  thou  he  whom  people  term  the  Prince  of  Israel  ?"  and 
having  received  an  affirmative  reply,  continued,  "  Well,  I  wish 
that,  if  thou  art  indeed  the  same,  there  ma}'  not  be  many  like 
thee  in  Israel!"  "And  wherefore,  my  son?"  inquired  the 
Rabbi,  calmly.  "  Because."  answered  the  disappointed  wagerer, 
"I  have  lost  on  thy  account  four  hundred*dinars,"  and  then  re- 
lated the  entire  story.  Hillel  still  retained  his  equanimity,  and 
dismissed  his  tempter  with  the  admonition  to  control  himself 


THE    TALMUD.  201 

are  some  illustrations.  A  heathen,  desirous  of  ob- 
taining divine  light,  applied  to  Shammai,  Hillel's 
deputy  in  the  8ynhedrion,^  for  information  on  relig- 
ion. "How  many  laws  have  the  Jews?  "  asked  he. 
"■  Two,"  replied  the  sage  :  "a  written  law — the  Penta- 
teuch, and  an  unwritten  law — the  traditional."  The 
stranger  expressed  his  desire  to  embrace  Judaism,  but 
would  not  accept  the  oral  law  ;  whereupon  Shammai 
grew  angryj  and  abruptly  dismissed  him.  He  made 
the  same  proposition  to  Hillel,  and  was  admitted  into 
the  fold  of  Israel,  but,  by  the  patience  of  the  sage, 
he  was  soon  induced  to  accept  the  oral  law  also.  Hillel 
taught  him  the  letters  of  the  Alphabet  in  their  proper 
order,  and  afterwards  reversed  them,  when  the  sur- 
prised proselyte  remarked,  "  Thou  hast  not  thus 
taught  me  before!"  To  this  Hillel  rejoined,  "Why 
didst  thou  accept  the  former  order  of  the  letters  ?  was 
it  not  because  thou  didst  believe  in  my  method  of 
teaching  ?  Well,  thou  must  also  believe  me  when  I 
teach  thee  the  oral  law."  The  argument  proved  con- 
vincing, and  the  heathen  accepted  the  oral  traditions. 
On  another  occasion  a  heathen,  who  had  heard  of  the 
costly  garments  which  decked  the  High  Priest,  was 
desirous  of  becoming  a  Jew,  provided  he  should  after- 
wards be  appointed  to  the  Pontificate.  He,  too,  un- 
bosomed himself  to  Shammai,  but  was  repulsed.  He 
applied  to  Hillel,  and  was  accepted.   Hillel  then  began 


in  the  future,  and  to  remember  that  he  might  lose  many  times 
four  hundred  dinars,  and  still  not  succeed  in  making  him  angry 
Sabbath  31  ;  Aboth  de  R.  Nathan  XV  . 

'  Cf.  ,-upra  §  55. 


202  APPENDIX. 

to  instruct  him  in  the  law,  on  the  plea  that,  as  tlie 
Prince  must  perfect  himself  in  war  tactics,  before  he 
can  ascend  the  throne,  so  every  one  is  obliged  to  ac- 
quaint himself  with  the  laws  of,  before  he  can  be 
elected  to  the  office  of  the  High  Priesthood.  When  they 
reached  the  passage  (Numbers  1,51),  "  The  stranger 
that  Cometh  nigh  shall  be  put  to  death,"  the  prose- 
lyte inquired  to  whom  this  applies,  and  received  in 
answer,  "Even  to  King  David!  Only  the  descend- 
ants of  Aaron  may  be  elevated  to  that  position."  The 
proselyte  was  convinced  of  the  unreasonableness  of  his 
aspirations,  and  abandoned  the  idea. 

A  third,  who,  like  the  former  two,  was  repulsed  by 
Shammai,  applied  to  Hillel  for  admission  into  the 
Jewish  covenant,  provided  he  could  be  instructed  in 
the  laws  of  that  religion  in  as  short  a  time  as  he  could 
stand  on  one  foot.  "Whatever  is  hateful  unto  thy- 
self," said  the  patient  sage,  "do  not  unto  thy  fellow- 
man.^  This  is  the  essence  of  the  law  ;  the  rest  is  but 
its  commentary. "  ^ 

Thus  did  Hillel  the  Great  devote  his  mind  and  his 
heart  to  the  elucidation  and  expansion  of  the  oral 
law,  and  his  energies  and  mental  acquisitions  to  the 
promotion  of  the  best  interests,  both  temporal  and 
spiritual,  of  his  fellow-beings.  He  graced  the  patri- 
archal office  for  a  period  of  forty  years  ;  he  lived  be- 
loved, and  died  mourned  by  all.  He  was  the  founder 
of  a  dynasty  of  Nesiim    (patriarchs,   princes),^  who 

'  Cf.   Matt.    VII,  12.     Philo  Judurous   quotes  this  maxim 
among  the  unwritten  laws  of  Judaism  (cf.  Groetz  III,  p.  22i). 
''  Sabbath  31"  ;  Aboth  de  11.  Xathan  XY. 
3  Cf.  supra  n.  199. 


THE    TALMUD. 


203 


successively  presided  over  the  deliberations  of  the 
Great  Synhedrion,  or  chief  council  of  the  Jews, 
for  upwards  of  four  hundred  years  (10-425  A.  C). 
There  was,  however,  u  short  interregnum  which  de- 
serves our  notice.  It  was  that  of  one  of  his  youngest 
disciples, 

E.    JOHAXAN    BEN    ZaKKAI, 

whom  personal  merit,  no  less  than  peculiar  circum- 
stances, elevated  to  the  patriarchate  some  sixty  years 
after  the  demise  of  the  great  master  who  had  pre- 
dicted a  blessed  future  for  him.' 

K.  Johanan,  in  his  advanced  age,  saw  the  last 
rays  of  the  setting  sun  of  Judea's  independence,  and 
the  first  rays  of  Israel's  new  epoch.  As  early  as 
the  closing  years  of  the  second  commonwealth,  R. 
Johanan's  fame  had  spread  ;  he  occupied  an  exalted 
position  in  the  Synhedrion,  and  directed  an  important 
academy  f  his  affability,  which  rivalled  that  of  his 
great  master,  attracted  to  him  the  noblest  and  best 
sons  of  his  people, — in  short,  R.  Johanan  was  deserv- 
edly popular  and  highly  respected.  But  his  noblest 
achievements  and  his  undying  fame  date  from  the  new 
epoch  of  which  he  himself  was  the  creator. 

During  the  protracted  siege  of  Jerusalem,  R.  Joha- 
nan belonged  to  the  conciliatory  party,  and  often 
counseled  the  zealots  to  open  the  gates  to  the  Romans, 
and  make  peace  with  them.    ''Why,"  cried  he,  ''will 

'  Succah  28'>;  Yer.  Xedarim  Y  §  7.  p  Z^^. 

■'  Cf.  Pesahini  26« ;  Yer.  Megillah  III,  §  1,  p.  73^. 


204  APPENDIX. 

you  expose  the  city  and  the  temple  to  destruction  by 
fire,  and  the  people  to  death  by  sword  and  famine?" 
Unfortunately  fanaticism  ruled  the  day,  and  the 
spirit  of  independence  could  not  brook  to  his  sage  ad- 
vice. He  therefore  escaped  from  the  besieged  city 
into  the  camp  of  the  besiegers,  and  from  its  general 
he  obtained  i)ermission  to  establish  himself  and  his 
school  in  the  neighboring  town,  Jabneh  or  Jamnia.' 


'  Gittin  56^  sq;  Aboth  de  R.  Nathan  IV.  The  circumstance> 
attending  his  escape  and  settlement  in  Jamnia  are  thus  de- 
scribed in  the  Talmud:  Seeing  his  conciliatory  counsel  cou- 
temned,  and  danger  daily  increasing,  he  resolved  upon  re- 
pairing to  the  general  of  the  besiegers  and  interceding  for  the 
people;  he  hoped  that  his  etforts  might  save  something  from  the 
inevitable  wreck.  But  how  evade  the  ubiquitous  eyes  of  the 
Zealots  who  would  permit  no  one  to  leave  the  city  ?  An  ex- 
pedient suggested  itself.  He  unbosomed  his  fears  and  his  hopes 
to  the  chief  of  the  Zealots— a  nephew  of  his,  and  with  the 
chiefs  connivance  a  plan  was  concocted  by  which  the  flight 
might  be  eflfected.  The  Rabbi  was  reported  sick,  and  only  his 
most  trusted  disciples  were  permitted  to  wait  on  him.  After 
the  lapse  of  a  few  days,  he  was  reported  dead,  and  awaiting 
burial.  He  was  placed  in  a  coffin,  and  a  piece  of  carrion  put 
at  his  side,  that  the  cadaverous  odor  might  help  to  deceive  the 
prying  sentinels.  Thus  encased,  he  was  carried  forth  towards 
the  cemetery  Avhich  was  beyond  the  walls  of  the  city,  followed 
by  a  great  concourse  of  mourning  people,  among  whom  was 
his  relative,  the  chief.  Arrived  at  the  city  gate,  the  procession 
was  stopped  by  the  guard  who  hesitated  to  let  the  coffin  pass,  and 
prepared  to  examine  its  contents;  but  here  the  chief  interfered, 
and  would  not  permit  'the  remains  of  the  beloved  Rabbi  in  Israel 
to  be  violated,'  and  so  obtained  permission  for  the  pall-bearers 
to  pass  on  with  their  burden.  Onoe  outside  of  the  city,  R. 
Johanan  was  released  from  his  confinement,  and  he  proceeded 
to  the  Roman  general,  by  whom  he  was  received  very  kindly. 


THE    TALMUD.  205 

Here  he  took  up  his  abode,  and  with  a  heart  full  of 
anxiety,  though  equally  as  full  of  pious  resigna- 
tion, he  awaited  the  results  of  the  great  struggle.  He 
had  foreseen  and  openly  predicted  the  consequences  of 
the  rule  of  the  Zealots  ;  still,  when  the  news  arrived 
that  the  city  had  fallen  and  the  temple  had  been  reduced 
to  ashes,  he  rent  his  garments  and  mourned,  as  for 
the  death  of  a  near  relative.  But  he  did  not  despair. 
Seeing  that  his  disciples  indulged  in  lamentations 
and  fasting,  the  aged  master  comforted  himself  and 
them,  saying,  "Alas,  it  is  true  that  we  have  lost  the 
place  of  expiation  ;  the  temple  wherein  the  sacrificial 
rites  have  been  practised  is  no  more, — but  we  have  a 
substitute  for  it  all :  humanity  is  still  left  to  us, 
and  this  is  even  more  pleasing  to  Grod  than  all  the 
sacrifices,  as  the  prophet  says  :  ^I  desire  charity  and 
not  sacrifice, '  "  ^  and  thus  he  suggested  the  way  for  the 
eventual  accommodation  of  Judaism  to  the  altered 
political  circumstances  of  the  Jews. 

But  Judaism  was  disjointed,  and  required  recon- 
struction. Deprived  of  its  central  points  of  gravity — 
the  national  Temple  and  the  national  Council, — it  was 
rent  into  fragments,  and  threatened  with  extinction. 

and  given  leave  to  ask  a  favor.  He  did  not  hesitate  long,  but 
instead  of  asking  a  personal  favor,  he  preferred  the  modest  peti- 
tion to  be  permitted  to  open  a  school  at  Jamnia,  which  the  general 
readily  granted.  The  Eabbi  thereupon  retired  to  the  neigh- 
boring town  Ramea,  there  to  await  the  issue  of  the  stirring 
events.  Soon  after  the  fall  of  Jerusalem  he  repaired  to  Jamnia, 
and  opened  his  school  which  proved  mightier  than  the  Roman 
sword. 

'  Hosea  YI,  6;  Aboth  de  E.  Nathan  1.  c. 


206  APPENDIX. 

R.  Jolianan's  first  effort  was  therefore  to  re-establisli 
the  authoritative  body  that  shouhl,  as  heretofore,  de- 
liberate upon  measures,  and  legislate  according  to  the 
exigencies  of  the  times  ;  and,  with  that  end  in  view, 
he  convoked  in  his  new  home  a  Synhedrion  which  was 
invested  with  all  the  supreme  religious  authority,  and 
with  the  judicial  functions  which  its  predecessor  in 
Jerusalem  had  possessed.^  The  Talmud  enumerates 
nine  regulations  adopted  by  E.  Johanan,  no  doubt, 
with  the  concurrence  of  the  Synhedrion,  whose  acknow- 
ledged chief  he  was.  Most  of  these  referred  to  the 
abrogation  of  such  ordinances  as  had  lost  their  signi- 
ficance after  the  destruction  of  the  Temple  ;  but  he 
retained  many  customs  commemorative  of  Temple- 
life."  Thus  Jamnia  became  the  religious  centre  for 
the  scattered  remnants  of  the  faithful  in  Israel,  and 
R.  Johanan  ben  Zakkai  the  preserver  of  Israel's  law 
and  unity. 

R.  Johanan  was  justly  regarded  as  the  personifica- 
tion and  living  re23resentative  of  the  oral  law.  The 
Halakhah  (custom,  decision,  rule)  which  constituted 
the  trunk  of  the  law;  the  Midj'asTi  (interpretation), 
which  formed  the  roots  that  suck  the  elements  of 
life  from  the  word  of  Scripture ;  the  Talmud,  the 
wide-spreading  branches  which  embraced  all  this,  as 
well  as  the  Agadah  (homilies),  the  blossoms  that 
enlivened  the  colorless  subject-matter  of  the  laAv  by 
their  brilliant  tints  and  sweet  fragrance,  — all  these 
constituent  parts  of  the  oral  law  the  master  treated 

'  Except  theji'».?  glndii.     Cf.  supra  n.  225. 

-  Eosh  Hashanaii  ZV^  Sotah  40^     Cf.  Graetz  IV.  c.  1. 


THE    TALMUD.  207 

in  his  lectures/  and  elaborated  therefrom  the  breath 
of  life,  which  revived  the  torpid  national  body,  and 
infused  into  it  new  vigor  and  energy.^ 

Politically  also,  K.  Johanan  was  an  important 
agent,  a  shield  to  the  incipient  congregational  life 
which  he  had  newly  created.  His  kind,  benignant 
character,  in  which  he  so  greatly  resembled  his  teacher 
Hillel,  was  manifest  in  his  dealings  with  every  man. 
It  is  said  of  him  that  he  anticipated  every  one  he 
met,  even  a  pagan,  in  tendering  cordial  greetings.^ 
This  uniform  kindness  and  peaceful  disposition  of 
the  Jewish  leader  may  have  been  instrumental  in  in- 
ducing the  two  Flavian  emperors,  Vespasian  and 
Titus,  to  relax  their  rigor  and  to  inflict  no  extra- 
ordinary persecutions  upon  the  Judean  congregations.* 

How  long  K.  Johanan  continued  in  the  presidency 
of  the  Synhedrion,  cannot  be  accurately  ascertained. 


'  Berakhoth  17^ 

*  Graetz  1.  c. 

3  Berakhoth  1.  c. — In  his  interpretations  of  Scripture  he  was 
guided  by  the  same  liberal  spirit.  The  zealots  of  his  day  were 
wout  to  e.Kpound  Biblical  texts  to  the  prejudice  of  other  nations, 
but  he  invariably  interpreted  them  to  their  advantage.  Thus 
the  Solomonic  saying  (Prov.  XIV,  34):  "The  kindness  of 
nations  is  sin,"  which  his  contemporaries  explained  as  mean- 
ing that  'the  kindness  which  the  pagans  show  to  Israel  is 
accounted  to  them  as  sin,  since  they  merely  do  it  in  order  to 
mock  us  by  their  conscious  power,* — R.  Johanan  expounded  in 
a  philanthropic  sense:  '•'•The  kindness  of  the  nations  is  a  sin- 
oftering  [the  term  Hatatlh,  used  in  the  verse,  means  either  sin 
or  sin-oftering] ;  as  the  sin-offering  atones  for  Israel,  so  charity 
and  benevolence  atone  for  the  Gentiles."     (B.  Bathra  lO^^). 

"  Graetz  1.  c. 


208  APPENDIX. 

Though  he  is  said  to  liave  reached  the  age  of  one 
hundred  and  twenty  years/  he  must  have  been  ad- 
vanced in  years,  even  beyond  the  furthest  limit  set  by  ' 
the  Psalmist,*  Avhen  he  left  Jerusalem,  as  he  has  been 
a  pupil  of  Hillel.  Consequently  not  many  years  were 
vouchsafed  him  to  steer  the  ship  of  Israel  on  the 
troubled  waters  at  the  beginning  of  the  Christian  Era. 
He  died  on  his  bed,  surrounded  by  his  disciples,  and 
liis  parting  blessing  to  them  was,  "May  the  fear  of 
God  have  as  much  influence  upon  your  conduct  as  the 
fear  of  man."  ^ 

Together  with  R.  Johanan,  a  number  of  bright 
stars  formed  a  galaxy  that  illumined  the  field  of 
the  law,  and  the  spirit  of  the  great  master,  which 
influenced   his   disciples,    was  by   them   transmitted 

'  Sifre  II,  §  357 ;  Yalkut  §  967. 

■'  Psalm  XC,  10. 

3  Berakhoth  27^— The  Solomonic  maxim  (Eccl.  IX,  8) :  ''Let 
thy  garments  be  always  white;  and  let  not  thy  head  lack  oint- 
ment," he  applied  to  the_  duty  of  man  to  be  at  all  times  pre- 
pared to  answer  the  call  of  death,  and  illustrated  this  by  the 
following  parable:  A  certain  king  once  invited  his  courtiers 
to  a  feast,  without  naming  the  exact  hour  at  which  they  were 
expected  to  come.  The  prudent  among  them  dressed  and  orna- 
mented themselves  early  in  the  day,  and  repaired  to  the  vicinity 
of  the  palace,  thinking  that  at  court  but  little  time  would  be  re- 
quired for  preparations,  and  they  might  be  called  in  at  any 
moment.  The  heedless,  on  the  contrary,  thought  that  much 
time  would  be  consumed  in  the  preparations  for  the  feast,  where- 
fore they  turned  to  their  usual  avocations.  Suddenly  the  king 
gave  the  signal  for  his  invited  guests  to  enter,  and  take  their 
seats  around  the  festive  board.  Those  who  were  fully  equipped 
for  the  occasion  were  heartily  welcomed,  while  the  negligent 
experienced  the  royal  displeasure  (Sabbath  153^). 


THE    TALMUD.  209 

to  subsequent  generations.  He  was  succeeded  in 
the  presidency  of  the  Synhedrion  by  K.  Gamliel  II, 
who  very  seldom  deviated  from  the  path  laid  out 
by  his  illustrious  sire,  Hillel  I,  and  followed  by  his 
teacher  and  predecessor.  R.  Eliezer,  E.  Joshua'  were 
numbered  among  the  most  prominent  members  of 
his  council,  and  with  him  they  zealously  labored  to 

'  Besides  being  learned  in  the  law,  and  skilled  in  debate,  (of. 
Hagiga  S'';  Xedarim  50b;  Bekhoroth  8)  he  was  familiar  with 
astronomj',  and  this  knowledge  saved  E.  Gamliel  and  his  re- 
tinue from  death  by  starvation.  The  simple  Talmudic  story 
of  that  occurrence  runs  thus :  R.  Gamliel,  accompanied  by  R. 
Joshua,  set  out  on  a  voyage.  Each  took  along  his  own  pro- 
visions, but  R,  Joshua  carried  with  him  a  store  larger  appa- 
rently than  the  journey  required.  The  captain  of  the  vessel, 
misled  by  a  star,  steered  in  the  wrong  course,  and  thereby  pro- 
longed the  journey.  R.  Gamliel's  provision  gave  out,  and  he 
was  astonished  to  find  his  companion  provided  with  food  suffi- 
cient to  supply  his  wants.  R.  Gamliel  enquired  for  the  reason 
tha4;  had  prompted  the  Rabbi  to  lay  in  so  great  a  supply  of  pro- 
visions, whereupon  R.  Joshua  informed  him  that  he  had  foreseen 
the  reappearance  of  a  star  which  appears  but  once  in  seventy  years, 
and  by  which  mariners  are  easily  deceived.  'This  star,  accord- 
ing to  my  calculations,  would  be  due  some  time  during  our 
journey,  and  I  provided  myself  for  the  emergency.'  (Horayoth 
10^).— Modern  scholars  suppose  that  "star  "  to  have  been  Hal- 
ley's  Comet  which,  according  to  the  computation  of  the  mathe- 
matician whose  name  it  bears,  takes  about  76  years  to  return  to 
its  perihelion.  It  last  appeared  in  1835,  and  the  hero  of  our 
story  having  flourished  during  the  patriarchate  of  Gamliel  II, 
it  is  assumed  that  the  journey  was  taken  in  the  year  87  A.  C. 
The  only  difficulty  in  identifying  this  comet  with  the  ^ar  is  the 
Rabbi's  given  meantime  of  its  periodic  reappearance :  70  in- 
stead of  76  years ;  but  the  ancients  usually  delighted  in  round 
numbers,  and  70  was  frequently  on  the  lips  of  the  Talmudists. 

14 


2 10  APPENDIX. 

preserve  the  traditions  received  Irom  their  predeces- 
sors, and  to  elaborate  new  Halakhoth.  But  the  former 
was  not  alwaj^s  on  friendly  terms  with  R.  Gamliel, 
and  was  ultimately  banished  from  his  college.^  R. 
Joshua,  on  the  other  hand,  who  had  inherited  the 
forgiving  disposition  of  R.  Johanan,  lived  in  peace 
with  the  president  of  the  Synhedrion,  and  when  the 
latter  died,  he  managed,  for  a  time,  the  administration 
of  the  spiritual  affairs  of  the  people.  He,  too,  en- 
joyed the  confidence  of  the  Roman  government,  and 
employed  his  influence  for  the  advantage  of  his 
people.^ 

These  were  the  leading  spirits  of  this  generation  of 
Tannaim  (scholars,  teachers).  The  other  prominent 
members  of  the  council  were  :  R.  Zadok,  Dosa  ben 
Harkinas,  Jose  the  priest,  Simon  ben  Nethaniel, 
Eleazar  ben  Arakh,  They  established  schools  at 
different  centres  of  Jewish  population,  and  taught 
the  Jaw.  The  greater  their  troubles,  and  the  severer 
their  trials,  the  closer  did  they  cling  to  their  national 
literature,  the  only  relic  saved  from  the  wreck  of 
Israel's  glorious  past. 

In  the  next  Tannaitic  generation  we  meet  with 
such  names  as  R.  Tryphon,  R.  Johanan  ben  Nuri, 
R.  Ishmael  ben  Elisha,  who  elaborated  the  seven  her- 
meneutic  rules  of  Hillel  I  into  thirteen,  and  R.  Jose 
the  Galilean,  the  father  of  R.  Eleazar  who  extended 
them  further  to  thirty-two  ;'  but  the  most  gifted  and 
best  known  of  them  all  was 

'  B.  Mezia  59^. 

"  Graetz  ].  c;  ib.  c.  3. 

3  Cf.  supra,  p.  196. 


THE   TALMUD.  211 

R.  Akiba  ben  Joseph. 

In  his  early  years  he  had  been,  like  Moses  before 
entering  on  his  great  mission,  a  shepherd  of  flocks, 
and  had  obtained  the  hand  of  his  wealthy  master's 
daughter,  at  a  price  which  bought  fame  as  well 
as  happiness — application  to  study.*  He  entered 
school  with  the  earnest  purpose  of  acquiring  know- 
ledge, and  he  succeeded.  At  first,  it  is  true,  his 
slumbering  faculties  would  not  awaken,  but  after 
continued  efforts,  his  genius  was  aroused,  and  soon 
he  became  the  equal,  and  gradually  the  superior  of 
the  master-minds  of  his  age.  Indeed,  it  is  stated 
that  his  teacher  himself,  R.  Eliezer  was  silenced  by 
his  arguments.^ 

The  great  fame  of  R.  Akiba  rests  upon  his  peculiar 
methods  in  expounding  scriptural  dicta  and  systema- 
tizing the  Halakhoth.  Until  his  day  the  Halakhah 
was  either  ''suspended  by  a  hair,"^  not  having  had 

'  Kethuboth  62"  sq.;  Nedarim  50^.  The  sources  relate  that 
young  Akiba  was  employed  as  shepherd  by  Kalba  Sabua,  but 
his  modesty  drew  upon  him  the  affectionate  regards  of  the  rich 
man's  daughter.  She  opened  her  heart  to  him,  and  promised 
him  her  hand  under  the  condition  that  he  would  acquire  a 
knowledge  of  the  law  of  which  he  was  at  the  time  profoundly 
ignorant.  He  agreed,  and  soon  departed  for  school.  For  years 
he  studied  and  then  taught,  while  his  betrothed  suffered  great 
privations,  having  been  banished  from  the  house  of  her  hard- 
hearted father  because  of  this  alliance ;  but  when  he  returned 
to  claim  her,  and  came  accompanied  by  admiring  disciples, 
the  father  not  only  relented,  but  presented  him  witbhalf  of  his 
possessions,  and  thus  made  an  end  to  the  privations  of  his 
daughter  and  her  husband. 

•'  Yer.  Pesahim  VI,  §  3,  p.  33"  bot. 


212  APPENDIX. 

sufficient  mnemonic  support  in  Scripture,  or  a  dead 
treasure,  incapable  of  growth  and  development.  It 
had  no  foundation,  except  in  tradition  ;  no  strong- 
hold, save  the  memory.  R.  Akiba  put  new  life  into  it, 
and  made  it  a  living  mine  from  which,  by  a  correct 
application  of  the  means  at  hand,  new  treasures  could 
at  all  times  be  dug.  To  give  it  more  validity,  he 
inaugurated  the  system  of  establishing  decisions,  no 
longer  on  the  plan  of  a  majority  vote,  but  on  the 
suggestive  word  of  the  written  Bible  text.  He  argued 
that  the  composition  of  the  Torali  (Pentateuch), 
especially  in  its  judicial  (Halakhah)  parts,  differs 
from  that  of  every  other  written  book.  The  human 
writer  uses,  besides  the  words  necessary  to  express 
his  ideas,  certain  turns,  tropes,  repetitions,  embellish- 
ments, redundancies — certain /o?*ms  which  are  almost 
superfluous.  In  the  Torah,  on  the  contrary,  noth- 
ing has  been  inserted  for  the  sake  of  mere  form,  but 
all  is  substance.  In  the  Sinaic  code  there  is  nothing 
superfluous,  not  even  a  single  letter.  Every  peculia- 
rity of  expression,  every  exi:)letive,  every  mark,  must, 
therefore,  be  regarded  as  a  significant  hint  pointing  to 
the  establishment  of  certain  truths,  or  certain  legal 
rules.  The  Halakhoth  thus  received  Scriptural  author- 
ity, and  controversies  were  thereby,  to  a  great  extent, 
obviated.  Indeed,  it  was  admitted  that  the  oral  law 
would  have  fallen  into  desuetude,  had  not  E.  Akiba 
furnished  it  with  such  strong  support.^ 


'  Sifre  II,  §  48.— R.  Tryphon,  formerly  his  superior,  now 
reverentially  addressed  him:  "whosoever  forsakes  thee,  for- 
sakes eternal  life,  for  what  has  been  forgotten  by  tradition  thou 


THE    TALMUD.  213 

But  this  was  not  all  that  K.  Akiba  accomplished. 
His  labors  extended  also  in  another  direction.  His 
attention  was  attracted  to  the  inefficient  method  by 
which  the  traditions  were  imparted  to  the  students, 
and  he  sought  to  remove  the  difficulty.  Hitherto 
there  had  been  no  system  in  the  manner  in  which  the 
Rabbis  held  forth,  and  it  required  many  years  of  con- 
stant attendance  on  the  lectures,  and  of  close  appli- 
cation to  study,  as  also  an  extremely  retentive  mem- 
ory, to  retain  the  whole  mass  of  Halakhoth,  com- 
municated without  any  connection  or  regularity. 
Whatever  decision  occurred  to  the  teacher's  mind 
while  at  his  desk,  that  he  imparted  to  his  hearers, 
without  reference  to  antecedents  or  sequents,  and 
this  made  it  excessively  difficult  for  the  disciples 
to  remember  it.  To  assist  the  memory,  R.  Akiba 
grouped  all  the  Halakhoth  systematically.  He  classi- 
fied the  decisions,  first,  according  to  their  subject- 
matter,   so   that  all  the   laws   concerning   the    Sab- 


restorest  by  thy  method  of  interpretation  "  (ib.  I.  §  75;  Yalkut 
Num.  §  725);  and  K.  Joshua,  although  wary  on  these  subjects, 
could  not  repress  his  admiration.  "  Would,"  said  he  on  one 
occasion,  ''that  the  eyes  of  E.  Johanan  beu  Zakkai  were  re- 
opened, so  that  he  might  assure  himself  of  the  groundlessness  of 
his  apprehension  lest  a  Halakhah  be  some  day  relinquished, 
because  it  has  no  support  in  the  word  of  Scripture;  behold,  R. 
Akiba  has  found  the  necessary  support ! "  (Sotah  c.  V,  §  2, 
Cf.  Yer.  ad  1.,  p.  20''  hot.).  With  such  and  similar  effusions  did 
R.  Akiba's  contemporaries  hail  his  new  method,  as  the  com- 
mencement of  a  new  era  in  the  interpretation  and  the  applica- 
of  the  Scriptural  text  (cf  Menahoth  29'';  Xum.  R.  c.  19);  and 
at  his  death  his  disciples  lamented  that  "the  arms  of  the  Law 
had  been  broken,  and  the  springs  of  wisdom  closed  "  (Sotah  49''). 


214  APPENDIX. 

bath  or  of  marriages,  for  instance,  formed  one  3Ia- 
seklita  (fextus,  treatise) ;  and  each  Masekhta  he  sub- 
divided according  to  the  number  of  the  subjects 
treated.  Thus,  for  instance,  were  placed  together  : 
Four  are  the  principal  causes  of  injury  to  property  ; 
jfive  classes  of  men  are  precluded  from  apportioning 
the  heave-oifering  ;  fifteen  women  absolve  their  hus- 
bands from  the  leviratical  marriage;  thirty-six  trans- 
gressions are  punishable  by  excision.^  Of  this  classi- 
fication by  K.  Akiba  into  sections  and  numbers  it  was 
said  that  he  had  provided  the  law  with  hooks  and 
handles,  as  it  were,  for  the  memory.^ 

This  systematic  compilation  by  E.  Akiba  was  called 
Mislinah  (from  the  late  Hebrew,  Shanah — to  study), 
esi)ecially  known  as  '^Mishnah  de  R.  Akiba"  (among 
Christian  writers,  the  Deuterosis  of  R.  Akiba) ;  it  is 
also  known  as  Mekhiltah,  llekhillin,  or  Middoth  (all  of 
which  terms  mean  measures),  ''probably  on  account 
of  the  numbers  which  were  used  as  connecting  links." 
This  collection  was,  in  the  course  of  time,  invested 
with  so  great  an  authority  that  it  often  superseded  its 
predecessor,  the  Mishnah  Bishonah  (earlier  Mishnah) 
of  Hillel.3 

Meanwhile  R.  Akiba 's  fame  spread  far  and  wide, 
and  attracted  to  his  school  hundreds  of  eager  students. 
The  number  of  his  hearers  is  variously  and  extrava- 
gantly stated,  the  most  modest  account  bringing  it 
down  to   three  hundred  ;   and,   although  the  Roman 

'  Yer.  Shekalim  V,  §  1,  p.  48c. 
2  Aboth  de  K.  Xathan  XVIII. 
'  Cf.  Graetz  1.  c,  note  8,  and  sources. 


THE    TALMUD. 


215 


government  fixed  the  penalty  of  death  upon  every  one 
who  would  give  instruction  in  Jewish  lore,  R.  Akiba 
did  not  cease  to  spread  the  knowledge  of  the  Oral 
Law  until  he  was  thrown  into  prison,  from  which  only 
a  martyr's  death  freed  him.^ 

After  the  death  of  R.  Akiba  and  the  repeal  of  the 
Hadrianic  edicts  against  the  Jews,  (about  140  A.  C), 

'  Cf.  supra  n.  391.— As  he  continued  preaching  and  teaching 
publicly,  Papus  ben  Judah  asked  him  once:  "Akiba,  fearest 
thou  not  the  wrath  of  the  government?  "  Thereupon  E.  Akiba 
replied  by  citing  the  following  parable: 

One  daV  a  fox  was  walking  along  the  river-side,  and  observed 
the  fishes  shooting  to  and  fro  in  great  confusion.  He  inquired 
for  the  reason  of  this  commotion,  and  was  informed  by  the 
aquatic  animals  that  it  was  because  they  feared  the  perils  of 
nets  and  hooks,  which  were  constantly  thrown  out  for  them. 
Thereupon  the  fox  invited  the  terrified  fishes  to  leave  their 
watery  homes,  and  to  follow  him  into  his  habitation,  where, 
under  his  protection,  they  could  live  in  safety  and  peace.  To 
this  the  fishes  replied,  "Art  thou  the  same  whom  all  regard  as 
the  wisest  of  all  beasts?  Thou  art  certainly  not  wise,  but 
foolish !  If,  while  living  in  the  water,  our  natural  element  of 
life,  we  have  reason  to  fear,  how  much  more  dangerous  would 
it  be  for  us  to  be  on  dry  land,  which  itself  is  death  to  us?'' 
The  Eabbi  continued :  "Thus  it  is  with  us  in  these  times  of 
persecution.  If  our  life  is  imperilled  when  we  are  studying  the 
law,  which  is  the  source  of  a  happy  life,  how  much  greater 
must  our  danger  be  when  we  neglect  to  study  the  law !"  Shortly 
after  this  dialogue,  R.  Akiba  and  Papus  were  arrested  by  the 
minions  of  their  Roman  persecutors.  The  two  met  in  prison, 
and  the  latter,  in  despair,  exclaimed,  "Happy  art  thou,  O 
Rabbi  Akiba,  who  art  here  for  the  cause  of  the  law ;  but  wo  to 
me,  who  am  imprisoned  for  having  pursued  a  vain  course." 
(Berakhoth  61b). 


216  APPENDIX. 

his  surviving  discijDles,  wlio  had  fled  during  the  perse- 
cutions, returned  to  Palestine,  and  reorganized  the 
council  for  the  administration  of  their  inherited  laws. 
They  were  seven  in  number,  and  their  names  were,  R. 
Meir,  R.  Judah  ben  Ilai,  R.  Jose  ben  Halafta,  R.  Jo- 
hanan  the  Sandalar,  R.  Simon  ben  Johai,  R.  Eleazar 
ben  Shamua,  and  R.  Nehemia.^  They  repaired  to 
the  plain  of  Rimmon,  where  they  began  to  deliberate 
on  certain  seasonable  observances,  when  a  dispute 
arose  among  them  anent  a  traditional  law.  This  at 
first  threatened  to  extinguish  the  sacred  flame  kindled 
by  their  martyred  teacher  ;  but  it  soon  subsided  and 
only  inspired  them  to  be  more  careful  in  the  future, 
and  more  zealous  in  prosecuting  the  still  incomplete 
work  of  collating  and  arranging  the  scattered  Hala- 
khoth.  They  convoked  an  assembly  of  the  learned 
in  Usha,  and  re-established  the  Synhedrion  whose 
sessions  had,  for  a  time,  been  interrupted  by  the 
Roman  persecutions.  Of  this  Synhedrion  R.  Simeon 
ben  Gamliel  II  was  Nasi,  R.  Nathan,  the  Babylonian, 
was  Ah-Beth-Din,  and  R.  Meir,  Hakliam. 

R.    Meir 

was  the  most  influential,  because  the  most  gifted  per- 
sonage of  this  generation.  His  high-soaring  mind, 
sterling  character,  and  profound  erudition  early  gained 
for  him  the  friendship  of  his  preceptor,  R.  Akiba,  by 
whom  he  was  ordained  with  the  title  Rabbi ;  but,  on 

'  Yer.  Hagiga  III,  §  1,  p.  TS^  top. 
2  Horayoth  la^.     Cf.  supra  §  55. 


THE    TALMUD.  217 

account  of  his  youth,  he  was  not  recognized  as  an 
independent  leader  of  a  college  until  after  his  re-ordi- 
nation hy  R.  Judah  hen  Baha.^  It  is  probable  that 
the  youthful  scholar  meant  to  criticise  this  undue 
respect  for  mere  age,  without  regard  to  true  merit, 
Avhen  he  said:  ''Look  not  at  the  flask,  hut  at  that 
which  is  contained  therein:  there  may  he  a  new  flask 
full  of  old  wine,  and  there  may  he  old  flasks  in  which 
there  is  not  even  new  wine.  "^ 

R.  Meir^  followed  closely  in  the  foot-prints  of  his 
great  preceptor,  R.  Akiha,  in  his  treatment  of  the  Hala- 
khah.  He  employed  the  hermeneutic,  exegetical  rules 
transmitted  hy  his  predecessors  to  substantiate  a  legal 
decision  or  to  annul  one;  and  continued  the  work  of 

'  Supra  n.  225.  The  seven  disciples  of  E.  Akiba  just  enume- 
rated were  ordained  on  that  occasion. 

■^  Aboth  IV,  §  27.  Indeed,  he  had  good  reason  for  taking 
offense  at  the  slight,  for  his  contemporaries  themselves  Avere 
forced  to  admit  (Erubin  IS'')  that  Kabbi  Meir  had  no  equal  in 
his  generation,  and  that  his  authority  would  SAvay  the  decision 
of  the  colleges,  were  it  not  for  the  fact  that  his  real  opinion 
could  not  be  ascertained.  He  was  Avont  to  argue  questions  pro 
and  con,  and  cite  analogous  cases  and  inferences  illustrating 
both  sides  of  the  subject,  the  affirmative  and  the  negative,  and 
thus  left  his  hearers  in  the  dark  as  to  his  true  opinion.  Perhaps 
he  did  this  simply  to  avoid  manifesting  partiality  to  one  or  the 
other  opinion,  A\iiich,  in  the  Speaker  of  the  Synhedriou,  might 
liuve  influenced  the  actions  of  his  constituents  (cf.  supra  n.  329). 

3  His  original  name,  the  Talmud  says,  was  Miasa  or  MoTse 
(Greek  pronunciation  of  Moses),  and  Meir  was  applied  to  him 
metaphorically,  "  because  he  enlightened  [Meir  being  a  derivative 
from  the  Hebrew  term  meaning  lights  the  mind's  eye  of  the  wise 
men"  (Erub.  IS''.  Cf  Yuliasin  s.  v.,  and  EabbinoA\^itz  D.  S. 
ad  1.). 


218  APPENDIX. 

E.  Akiba  in  the  formal  arrangement  of  the  Mishnah, 
The  isolated  fragmentary  parts  of  his  teacher's  com- 
pilation he  united  into  a  whole,  supplied  deficiencies, 
and  gave  every  part  a  name  corresponding  to  its 
subject-matter.  His  mode  of  teaching  drew  around 
him  a  large  number  of  pupils,  and  his  cultured  wit 
distinguished  him  as  one  of  the  greatest  fabulists  of 
his  age.  On  the  jackal  alone,  the  favorite  figure  of 
Oriental  fiction,  he  is  reported  to  have  written  three 
hundred  fables,  with  which  he  relieved  the  dry  and 
unpalatable  study  of  the  Halakhah,  and  by  which 
he  illustrated  interesting  Agadoth  (homilies),  whose 
province  it  was  to  give  the  free  and  unconstrained 
interpretation  of  Scripture,  the  exposition  of  history, 
the  representation  of  the  past  and  future  of  Judaism, 
as  well  as  the  institution  of  inquiries  concerning  the 
object  and  significance  of  laws  and  the  search  after 
abstract  moral  truths.  Of  all  his  allegorical  illus- 
trations of  Biblical  texts  only  three  fragments  are 
preserved,  which  the  great  Talmudical  commentators, 
Eashi  and  3Ieharshaa,  interweave  into  one.^ 

R.  Meir  was  married  to  Beruria  (or  Valeria),  the 
learned  daughter  of  R.  Hanina  ben  Tradion,  whose 
opinions  on  the  Halakhah  were  honorably  mentioned 
by  R.  Judah;^  and  in  her  he  found  'a  help  meet  unto 
him,'     Both  were  modest  in  their  behavior  and  re- 

'  Sanhedrin  SS**  sq. 

2  Tosefta  Kelira,  part  II,  c.  1,  §  6,  ed,  Zuck.  Former  editions 
erroneously  have  Joshua  instead  of  Judah.  Her  attendance  on 
the  lectures  of  the  Eabbis  is  said  to  have  been  ver}'  frequent 
(Pesahim  62»>>. 


THE    TALMUD.  219 

signed  to  their  fate/  but  Beruria  even  more  so  than 


•  The  Midrash  (Prov.  XXXI)  preserves  the  following  touching 
illustration  of  their  pious  resignation : — On  a  certain  Sabbath 
afternoon,  while  K.  Meir  was  at  college  engaged  in  expound- 
ing the  law,  his  two  sons,  both  lovely  youths  and  of  uncommon 
depth  of  mind,  suddenly  died.  Unwilling  to  sadden  her  hus- 
band's heart  on  the  Sabbath  by  the  sorrowful  intelligence,  his 
wife  conveyed  the  corpses  to  her  bed-chamber,  where  she  had 
them  tenderly  laid  on  a  couch,  and  covered  over  with  a  white 
coverlet.  When,  in  the  evening,  llabbi  Meir  came  home  and 
inquired  as  to  the  whereabouts  of  his  children,  the  grief-stricken 
mother  evasively  answered  that  they  were  not  far  oft';  and 
placed  before  him  food  and  drink.  After  he  had  pronounced 
the  benediction  customary  at  the  close  of  the  Sabbath,  his  wife 
requested  permission  to  ask  a  question,  Avhich  he  readily  granted. 

"A  few  days  ago,"  said  she,  -'a  person  intrusted  a  treasure 
in  my  safe-keeping,  and  now  he  claims  it  back.  Shall  I  return 
it  to  him?" 

''This  is  a  strange  question,"  answered  Eabbi  Meir,  "which 
my  wife  should  never  have  thought  it  necessary  to  ask.  What ! 
wouldst  thou  hesitate  to  restore  to  a  stranger  his  own?" 

"No!"  replied  she.  "But  I  thought  it  best  not  to  restore 
the  treasure  before  I  had  acquainted  thee  with  the  aftair." 

She  then  led  him  to  the  death-chamber,  and  approaching  the 
bier,  removed  the  coverlet  from  the  dead  bodies.  The  sight 
appalled  him,  and  in  a  mournful  voice  he  began  to  lament: 
"Ah!  my  sons,  my  sons!  the  light  of  my  eyes!  I  was  your 
father,  but  ye  were  my  teachers  in  the  law." 

The  mother  turned  away  and  wept  bitterly.  At  lengtlj  she 
tenderly  took  her  husband's  hand  into  hers,  and  said :  "Rabbi, 
didst  thou  not  teach  me  that  we  must  not  be  reluctant  to  restore 
that  which  is  intrusted  to  our  keeping !  The  Lord  hath  given, 
the  Lord  hath  taken  away,  blessed  be  the  name  of  the  Lord!" 

"  Yes,  blessed  be  the  name  of  the  Lord !"  echoed  the  resigned 
Rabbi;  "and  blessed  be  his  name  also  for  thy  sake,  for  thou 
hast  truly  comforted  me.'* 


220  APPENDIX. 

lier  famous  husband.  When  on  one  occasion  the 
Eabbi,  mercilessly  plagued  by  a  wicked  neighbor, 
was  provoked  to  anger,  and  uttered  a  wish  that  the 
sinner  would  be  removed  from  this  world,  Beruria  re- 
proved him,  saying,  Not  so,  my  husband;  the  Psalm- 
ist did  not  pray,  that  the  sinners  [hoteim]  be  con- 
sumed out  of  the  earth,  but  'that  sins  [hataim]  be 
consumed  out  of  the  earth,  and  then  there  would  be 
no  more  wicked  people. '  ^  Pray,  not  for  the  destruction 
of  the  person,  but  for  the  reformation  of  his  heart. 

Among  E.  Meir's  colleagues  the  most  noteworthy 
was  K.  Simon  ben  Johai,  who  survived  all  the  rest, 
and  who  presided  over  the  academy  at  Tekoa,  in  Gali- 
lee. He  had  a  number  of  disciples,  and  became  the 
only  authority  for  the  succeeding  age.  After  the 
example  of  his  coadjutors,  he  too  compiled  a  Mishnah 
collection  under  the  name  of  Middoth,  which  contains 
an  abridged  selection  from  that  of  E.  Akiba,^ 

Another  of  E.  Meir's  colleagues,  E.  Jose  ben  Ha- 
laftha,  was  the  first  systematic  Eabbinic  historian. 
He  vigorously  applied  himself  to  that  field,  unculti- 
vated in  his  times,  and  as  the  result  of  his  labors  left 
a  chronological  history,  based  on  the  Bible,  and  con- 
tinued from  the  creation  to  the  Bar-Cokhba  insurrec- 
tion (135-138),  which  he  styled  Seder  Olam  (Order  of 
the  World),  and  which  was  designed  to  throw  light 
on  certain  obscure  data  in  Holy  Writ,  and  to  fill  up 
the  gaps  by  tradition.     He  also  compiled  a  Mishnah 

'  Psalm  CIV,  35 ;  Berakhoth  10*. 
2GittinG6a;  Sanhedrin  86a. 


THE    TALMUD.  221 

collection,  known  under  the  Greek  appellation  A^mi- 
kon   (Compendium  of  Laws).^ 

A  third  collection  was  at  this  time  accomplished 
by  R.  Nathan  of  Babylon,  vice-president  of  the  Syn- 
hedrion  at  Usha.  This  compilation  is  known  under 
the  name  of  Aboth  d'  R.  Nathan. 

It  was  during  the  lives  of  these  Tannaim  that  great 
disturbances  arose  between  the  disciples  of  the  differ- 
ent schools,  composing  the  Synhedrion  under  the 
patriarchate  or  presidency  of  R.  Simon  ben  Gambiel 
II.  A  rival  Synod  was  established  and  j)resided  over 
by  R.  Hanina  at  Nehar-Pakod,  in  Babylon,  which 
threatened  to  sever  the  religious  bond  of  union  that 
united  all  Israel  under  one  Council.  It  was,  how- 
ever, not  of  long  duration.  The  Palestinean  Synhed- 
rion did  not  brook  a  rival  authority  which  divided  the 
unity  of  Judaism  into  Oriental  and  Occidental  fac- 
tions. R.  Isaac  and  R.  Nathan  were  therefore  de- 
spatched thither  by  the  patriarch  R.  Simon,  with 
instructions  to  exert  their  utmost  endeavors  to  effect 
a  dissolution  of  the  new  tribunal ;  and  their  mission 
was  crowned  with  success.  R.  Hanina  at  first  resisted 
the  entreaties  and  remonstrances  of  the  delegation; 
but  discovering  that  the  efforts  of  his  opponents 
had  made  a  deep  impression  on  his  constituents,  who 
no  longer  sympathized  with  him,  he  submitted, 
and  declared  the  first  Babylonian  Synhedrion  dis- 
solved. 

Not  so  easily  were  the  domestic  disturbances  quelled. 
Bitter  feelings  were  engendered  in  the  breasts  of  R.  Na- 

>  Erubin  51* ;  Gittin  67^. 


222  APPENDIX. 

than  and  R.  Meir,  the  Vice-President  and  the  Speaker 
of  the  Usha  Synhedrion,  against  the  Patriarch,  who, 
in  their  absence,  had  introduced  peculiar  rules  by 
which  the  dignity  of  his  office  should  be  distinguished 
over  those  of  his  assistants.  This  irritated  the  two 
dignitaries,  and  they  conspired  to  have  him  deposed. 
Their  conspiracy,  however,  was  betrayed  and  frus- 
trated. Still,  dissension  continued  to  increase,  and 
found  a  home  among  the  various  schools  and  mani- 
fested itself  in  heated  discussions  of  the  Halakhah. 
Indeed,  the  discord  in  the  decisions  of  those  days  was 
so  marked,  as  to  make  it  appear  as  if  there  were 
really  two  TorUh,  instead  of  one  only,^  upon  which 
Rabbinic  enactments  could  be  based.  When,  there- 
fore, after  the  death  of  R.  Simon  II,  his  son, 

R.    JUDAH  I, 

commonly  styled  Hackadosh  (the  Holy)  or  simply 
Babbi, — succeeded  to  the  patriarchate  (170  A.  C), 
his  earliest  and  most  strenuous  efforts  were  directed 
towards  effecting  a  reconciliation  between  the  con- 
tending elements,  and  codifying  the  Halakhoth,  scat- 
tered in  the  memories  of  the  Rabbis,  into  one  digest, 
and  thus  to  unify  the  law. 

Of  R.  Judah  I  it  was  said  that,  since  Moses,  know- 
ledge and  authority  had  not  been  joined  in  one  person 
as  they  were  in  him.*  His  wealth,  too,  was  fabu- 
lously great,  and  gave  rise  to  the  assertion  that  his 

'ErubinSla;  Gittin  67». 
'  Sanhedrin  36* ;  Gittin  59*. 


THE    TALMUD.  223 

equerry  was  richer  than  the  Persian  King.'  But  this 
he  employed  in  ameliorating  the  condition  of  the  suffer- 
ing poor.  When  in  the  reign  of  Marcus  Aurelius,  a 
terrible  famine  visited  Palestine,  R.  Judah  opened 
his  vast  granaries  and  distributed  food,  at  first  to  the 
learned  only,  but  afterwards  among  all  classes  indis- 
criminately.^ Thus  richly  endowed  with  natural  and 
worldly  gifts,  he  wielded  an  authority  which  grew 
from  day  to  day,  and  finally  became  so  great  that  it 
made  him  dictator  of  all  Palestinean  Jewish  congre- 
gations, and  extended  his  sway  even  over  his  Babylo- 
nian co-religionists.'  No  religious  decision  was  valid 
without  his  sanction,*  and  no  disciple  could  be  ordained 
without  his  approval.' 

R.  Judah  did  not  maintain  everything  in  the  Jewish 
religion  in  statu  quo,  but  zealously  labored  to  harmo- 
nize the  law  with  the  requirements  of  the  times  and  of 
the  ever  varying  circumstances.  When,  owing  to  the 
accumulated  misfortunes  which  succeeded  the  Bar- 
Gokhba  insurrection,  the  laws  concerning  the  release- 
year  and  the  tithes  became  very,  oppressive  on  the 
impoverished  people,  R.  Judah  exempted  from  these 
laws  the  frontier  towns,  which,  though  under  Judean 
religious  surveillance,  did  not  constitute  part  of  Judea 
proper;  and  when  his  own  relatives  remonstrated 
against  this  enactment,  which  abrogated  an  old  estab- 
lished custom,  he  replied,  ''My  predecessors  have  left 

'  Sanhedrin  36*. 
2  Sabbath  113\  B.  Mezia  85a. 
B.  Bathra  8\ 

*  Sauheclrin  5b. 

*  Cf.  supra  n.  215. 


224  APPENDIX. 

tliis  measure  for  me  that  I  might  show  my  undisputed 
authority."^  Many  other  ameliorations  he  intro- 
duced, and,  guided  by  the  change  of  circumstances, 
he  abolished  customs  and  ceremonies  sanctioned  by 
age. 

But  neither  his  wealth  and  his  benevolence,  nor  his 
authority  and  legislation,  gained  for  him  the  fame 
which  his  literary  labors  did.  His  intellectual  capa- 
cities early  won  for  him  the  love  and  esteem  of  his 
teachers  and  colleagues,  and  already  in  his  youth  was 
he  promoted  by  his  father  and  the  college  to  the  first 
rank  of  the  disciples;^  and  his  talents,  as  well  as  the 
versatility  of  his  learning — for  he  did  not  confine  him- 
self to  the  opinions  of  a  single  school,  but  drew  know- 
ledge from  all  sources, — enabled  him  to  furnish  impar- 
tial decisions  and  to  complete  the  collection  of  all 
Halakhoth  (189).  Since  the  first  collection  by  Hillel 
had  been  made,  the  subject  matter  of  the  law  was 
greatly  increased  by  the  several  schools.  New  cases, 
partly  derived  from  old  ones  by  the  hermeneutic  rules, 
and  partly  from  Scriptural  texts  on  R.  Akiba's  plan, 
swelled  its  volume  and  made  it  impossible  any  longer  to 
learn  and  to  teach  orally.  Besides,  the  Israelites  of  his 
times  moved  about  from  one  place  to  another  in  quest 
of  freedom,  and  adopted  the  languages  of  the  coun- 
tries of  their  dispersion,  wherefore  great  fears  were 
entertained  that,  in  the  course  of  events,  the  tradi- 
tional law,  which  was  in  the  possession  of  compara- 
tively few  only,^  would  fall  into  oblivion.     Taking  all 

'  Hullin  6b. 

2  Cf.  B.  Mezia  44%  et  al. 

3  It  must  be  borne  iu  mind  that  we  speak  of  the  traditional  or 
oraHaAV.     Until  the  days  of  Rabbi  Judali  nothing  of  the  tra- 


THE    TALMUD.  225 

this  into  consideration,  R.  Judali  I  resolved  to  come 
to  the  rescue.     He  examined  every  opinion   impar- 
tially, and  fixed  the  decision  according  to  majorities, 
thus  summing  up  the  labors  of  hundreds  of  sages  and 
of  years:    ''The  Oral  Law  had  been   recognized   by 
Ezra;  had  become  important  in  the  days  of  the  Mac- 
cabees; had  been  supported  by  Pharisaism;  narrowed 
by  the  school  of  Shammai,  codified  by  the  school  of 
Hillel,  systematized  by  R.  Akiba,  placed  on  a  logical 
basis  by  R.   Ishmael,    exegetically  amplified  by   R. 
Eliezer,  and  constantly  enriched  by  successive  Rabbis 
and  their  schools.     Rahhi  put  the  coping-stone  to  the 
immense  structure,  "^    jj^  arranged  the  heterogenous 
mass  of  upwards  of  4000  traditional  Halahlioth  or  Mish- 
niyoth,  (precedents,  doctrines)  into  six  Sedarim  (cate- 
gories, orders)  which  he  subdivided  into  sixty-three 
MesikUoth  (treatises),  and  then  into  five  hundred  and 
twenty-three   Perakim    (fragments,   chapters).      But 
although  R.  Judah  endeavored  to  effect  a  systematic 
grouping  of  the  various  laws  under  their  proper  titles, 
he  did  not   invariably   succeed,  partly   because   the 
matter  was  too  heterogenous  to  be  harmonized,  and 
partly,  because  he  wished  to  retain  the  existing  order 
and  division. 3   It  is  therefore  almost  impossible  to  give 

dition  was  allowed  to  be  written  down,  and  all  Halakhoth  were 
imparted  by  the  teacher  to  his  disciples  by  word  of  mouth.  It 
IS  true  that  to  assist  the  memory  memoranda  were  occasionally 
drawn  up  by  teacher  or  pupil,  but  they  were  left  in  the  posses- 
sion of  their  owner.  They  were  kept  iu  secret,  wherefore  they 
were  called  M'gillotli  SHIianm  (Secret  Scrolls). 

*  Farrar,  History  of  Interpretation. 

3  Graetz  IV,  e.  12.— Maimonides  and  others,  notably  Fran- 
kel  {Hodegetica  in  Mishiam  p.  254  sq.)  labored  to  find  in  Rabbi's 
15 


226  APPENDIX. 

a  complete  analysis  of  the  work,  and  we  content  our- 
selves with  simply  furnishing  a  general  one  of  the 

Orders 

which  he  named  after  the  principal  matters  they  re- 
spectively treat  of. 

Order  I,  Zeraim  (seeds),  treating  of  Agrarian  Laws: 
Benedictions  said  over  the  earth's  productions;  Tithes, 
Heave-offerings,  Kelease-year,  Prohibitory  Mixtures 
in  plants,  animals  and  garments.  This  Order  consists 
of  eleven  treatises. 

Order  II,  Moed  (feasts),  treating  of  the  Sabbath, 
festivals  and  fast  days,  as  also  of  the  ceremonials  and 
sacrifices  for  these  days.  This  Order  consists  of 
twelve  treatises. 

Order  III,  Nashim  (women),  treats  of  betrothals, 
marriages  and  divorce,  and  of  vows  and  obligations. 
This  Order  contains  seven  treatises. 

Order  IV,  Nezikin  (damages),  treats,  in  the  main, 
of  civil  and  criminal  law,  and  of  the  laws  concerning 
idolatry.     This  Order  contains  ten  treatises. 

Order  V,  Kadashim  (holy  things),  speaks  of  the 
various  sacrifices   and  of  all  the  Temple  service,  as 


compilation  a  certain  systematic  order;  but  the  Talmud  itself 
says:  "There  is  no  regular  order  in  the  Mishnah"  (B.  Kama 
102a;  Ab.  Zara  7^).  That  this,  is  the  fact,  the  attentive  reader 
will  doubtlessly  have  discovered  ere  this,  by  simply  glancing  at 
the  references  in  our  compendium  for  which,  although  it  treats 
of  a  single  branch  of  Eabbinic  lore,  the  material  had  to  be 
gathered  from  almost  all  the  treatises  of  the  Babylonian  and 
the  Palestinean  Talmudim,  and  also  from  their  contemporane- 
ous Eabbinic  compilations. 


THE   TALMUD.  227 

also  of  the  dimensions  of  the  building  and  its  appur- 
tenances.    This  Order  contains  eleven  treatises. 

Order  VI,  Taharoth  (purification),  treats  of  the 
different  ways  and  means  required  for  the  cleansing 
of  the  defiled  person  or  thing,  the  leper,  for  instance, 
or  a  vessel  which  was  under  one  roof  with  a  human 
corpse.     This  Order  contains  twelve  treatises. 

This  compilation  is  known  under  the  title  of  MiSH- 
NAH,  without  any  qualifying  epithet  designating  its 
compiler.  It  comprises  the  earlier  collections  {Mish- 
nah  Bishonah),  as  well  as  later  Halakhoth,  and,  al- 
though Rabbi  may  not  have  intended  it  so,  it  neverthe- 
less became  the  sole  standard,  and  attained  exclusive 
authority,  superseding  that  of  its  predecessors  in  all 
cases  where  differences  of  opinion  appeared.  As  time 
rolled  by,  and  circumstances  changed,  Eabbi  found  it 
necessary  to  revise  his  compilation,  and  make  such 
alterations  as  rendered  his  work  more  compatible  with 
the  requirements  of  the  age.* 

Thus  was  at  last  the  Traditional,  or  Oral  Law, 
which  had  been  floating  in  the  air,  as  it  were,  during 
four  centuries,  brought  to  a  close,  and  established  on 
a  firm  basis. ^  ''The  Mishnah,  at  the  side  of  the  Holy 
Scriptures,  became  the  principal  source  of  intellectual 
stimulus  and  inquiry;  it  supplanted  at  times  even 
the  Scriptures,  and  sustained  its  exclusive  authority. 

'  Cf.  B,  Mezia  44*;  Ab.  Zara  52*'.— The  Palestinean  colleges, 
however,  seem  to  have  adhered  to  the  original  edition,  and  only 
the  Babylonians  adopted  the  revised  one. 

^  But  Avhether  Rabbi  wrote  down  his  Mishnah  or  arranged  it 
orally,  is  as  yet  a  mooted  question. 


228  APPENDIX. 

It  became  the  spiritual  cement,  which  kept  together 
the  disjointed  members  of  the  Jewish  nationality,  and 
rendered  the  visible  bond  dispensable."  Henceforth 
it  formed  the  mental  centre  of  the  sages  and  scholars 
of  Israel,  but  nothing  was  allowed  to  be  added  thereto. 

After  the  publication  of  the  Mishnah  by  K.  Judah 
I,  his  younger  contemporaries  proceeded  to  collect 
the  Halakhoth,  omitted  by  the  patriarch,  partly 
because  they  lacked  legal  force,  and  partly  because 
they  appeared  as  special  elaborations  under  general 
formulas.  Of  these  the  principal  collections  are  the 
Tosejjhia  (supplement)  of  R.  Hiya  and  R.  Oshia;  Bar- 
aitha  or  Mishnah  Hitzona  (external  Mishnah,  Apoc- 
rypha);  Mehhilta  of  R.  Ishmael;  Sifra  and  Sifre  dele 
Ecibh;  all  of  which  are  composed  in  the  spirit  of  R. 
Akiba's  principles,^  but  they  are  not  as  authorita- 
tive as  Rabbi's  collection. 

On  his  death-bed  (210  A.  C.)  Rabbi  appointed  his 
eldest  son,  Gamliel  III,  as  his  successor  in  the  patri- 
archal dignity,  and  his  son  Simon  he  named  for  the 
the  office  of  HaJcham.^  With  the  death  of  these,  the 
line  of  Tannaim  (Mishnahists)'  ended,  and  was  suc- 

'  Sanhedrin  86%  et  al. 

"  Kethuboth  lOSb. 

3  Mahnonides,  in  his  "Preface  to  Seder  Zeraim,"  counts 
ninety-one  Tannaim  in  whose  names  Halakhoth  are  recorded 
in  the  Mishnah,  and  thirty-seven  who  are  mentioned  only  in 
connection  with  certain  events,  or  as  ethical  teachers.  There 
were,  however,  more  than  one  hundred  and  twenty-eight  Kahbis 
engaged  in  the  composition  of  the  subject  matter  of  that  great 
work,  but  their  names  are  not  given,  the  editor  of  the  compila- 
tion having  traced  the  traditions  no  farther  back  than  to  Simon 


THE    TALMUD.  229 

ceeded  by  that  of  the  Amoraim  (lecturers,  interpre- 
ters), the  commentators  on  the  Mishnah. 

n. 

The  Guemara. 

The  younger  contemporaries  of  Rabbi  and  the  survi- 
vors of  his  immediate  successors  now  assumed  the  task 
of  continuing  the  chain  of  the  Oral  law,  not,  indeed 
adding  aught  to  the  complete  collection  of  the  Mish- 
nah, but  commenting  upon  it,  and  drawing  logical 
inferences  and  new  decisions  from  it.  The  study  of 
the  Scriptures  was  now  almost  suspended,  and  the 
Amoraim  occupied  themselves  mainly  with  the  culti- 
vation of  the  Traditional  law.  They  were  told  that, 
'while  the  study  of  the  Bible  is  a  meritorious  avoca- 
tion, the  application  to  the  Mishnah  is  more  impor- 
tant and  meritorious,' and  acted  accordingly.^  The 
Mishnah  was  to  the  Amoraim  what  the  Bible  had  been 
to  the  Tannaim:  a  text-book  of  mnemonics.  They 
made  the  brief,  and,  not  unfrequently,  obscure  con- 
tents of  the  Mishnah  the  subject  matter  of  their  dili- 
gent study  and  discussion.  They  dissected  it,  com- 
mented upon  it,  and  gave  it  a  new  dress,  almost  a  new 
form.  And  as  they  did  not  confine  themselves  to  the 
simple  dissertations  of  the  Mishnah,  but  gradually 
asserted  their  independence  of  the  laws  laid  down  by 

the  Just,  and  many  of  those  which  had  been  the  subjects  of  discus- 
sion, he  transmitted  anonymously. — In  his  "Tahnudic  ^oZZ  o/ 
Honor,''^  now  in  preparation,  the  author  will  furnish  a  list  of  Tan- 
naim, comprising  more  than  twice  as  many  as  stated  by  Mai- 
monides. 

'  B.  Mezia  33^ 


230  APPENDIX. 

their  predecessors,  and  transgressed  beyond  the  limits 
of  their  texts,  a  new  sphere  of  activity  was  opened  to 
them,  assuming  very  Large  proportions;  and  the  result 
of  their  labors  was  subsequently  compiled  under  the 
name  of  Guemara  (discussion,  complement,  doctrine: 
the  term  gamar  answering  to  either.) 

The  representative  Amoraim  of  this  generation 
(225-280)  were  in  Palestine:  K.  Hiya  the  Elder,  com- 
piler of  the  Tosefta,  Bar  Kappara,  E.  Isaac  the  Elder, 
Levi  ben  Sisi,  R.  Hanina,  R.  Oshia  the  Elder,  co- 
worker in  the  compilation  of  the  Tosefta,  E.  Judah 
II,  the  patriarch,  E.  Johanan;  and  in  Babylon:  E. 
Shila,  Abba  bar  Abba,  Abba  Arekha. 

These,  together  with  their  coadjutors,  studied  and 
taught.  In  their  public  lectures  they  were  wont  to 
expound  their  themes  in  an  undertone  to  the  Metiir- 
geman  (interpreter),  who  pronounced  them  aloud  to 
the  assembled  hearers.^ 

The  Amoraim,  like  the  Tannaim,  endeavored  to 
point  out  and  thoroughly  explain  every  precept  in  the 


'  Sanhedrin  7^  It  is  related  that  on  one  occasion,  the  patriarch 
appointed  a  favorite  of  his,  though  an  ignorant  man,  as  public 
lecturer,  and  assigned  to  him  R.  Judah  ben  Nahameni  as  Metur- 
geman.  R.  Judah  strained  his  ears  to  gather  up  the  whispered 
sayings  expected  on  such  occasions;  but  it  was  in  vain.  The 
lecturer  knew  not  how  to  begin  or  what  to  say.  Chagrined  by 
this  abuse  of  the  patriarchal  authority,  the  Meturgeman  poured 
forth  his  biting  sarcasm  upon  both  the  patriarch  and  his  pro- 
tege. Quoting  a  Biblical  passage  (Habakkuk  II,  19),  he  ex- 
claimed: "Woe  unto  him  who  saith  to  the  wood,  'Awake!'  to 
the  dumb  stone,  'Rouse  up!'  Can  this  one  teach?  Behold,  he 
is  encased  in  gold  and  silver,  but  there  is  no  spirit  in  him." 
This  recalled  the  patriarch  to  his  senses,  and  we  meet  no  more 
with  such  cases. 


THE    TALMUD.  231 

Bible.  R.  Simlai  numbered  all  the  ordinances  and 
traced  them  to  principles.  He  says:^  "Six  hundred 
and  thirteen  commandments  were  delivered  to  Moses 
at  Sinai;  of  these,  three  hundred  and  sixty-five,  cor- 
responding to  the  number  of  days  in  the  solar  year, 
are  negative  ordinances,  and  the  remaining  two  hun- 
dred and  forty-eight,  corresponding  to  the  number  of 
limbs  in  the  human  body,  are  positive.  King  David, 
however,  reduced  them  to  eleven,  as  follows:  1.  To 
walk  in  integrity.  2.  Do  justice.  3.  Speak  truth. 
4.  Avoid  slander.  5.  Eefrain  from  doing  evil  to  a 
neighbor.  6.  Do  not  revile  thy  friend.  7.  Despise 
the  wicked.  8.  Revere  the  God-fearing.  9.  Abide 
by  an  oath.  10.  Not  to  take  usury.  11.  Not  to  take 
bribe.^  The  prophet  Isaiah  condensed  these  into 
six,  to  wit:  1.  To  do  justice.  2.  Speak  truth.  3. 
Despise  the  gain  of  oppression.  4.  Withhold  thv 
hand  from  bribery.  5.  Stopping  the  ear  against  hear- 
ino-  of  blood  (i.  e.  evil  communications  which  may 
result  in  bloodshed).  6.  Closing  the  eye  against  all 
evil. 3  Then  came  the  prophet  Micah  and  summed 
them  up  in  the  following  three,  viz:  1.  Do  justice. 
2.  Love  kindness.  3.  Walk  humbly  with  God.* 
Again,  Isaiah  (II)  compressed  them  into  two,  viz: 
1.  Observe  justice.  2.  Practice  benevolence.^  Finally 
came  the  prophet  Habakkuk,  and  reduced  all  com- 


>  Cf.  supra.  §  11. 

2  Psalm  X'\'. 

3  Isaiah  XXXYIII,  15. 

*  Micah  VI.  8. 
s  Isaiah  LVI.  1. 


232  APPENDIX. 

mandments  into  one,  viz:     The  righteous  liveth  in 
his  fidelit}'.^ 

It  was  at  this  time  that  Babylonia  began  gradually 
to  move  to  the  front  of  Jewish  history,  and  to  become  a 
second  "Land  of  Israel.  "^  The  Jewish  leaders  of  this 
country  became  inured  to  profound  meditation  and 
research.  A  spirit  of  deep  inquiry  and  ceaseless 
activity  pervaded  them  all.  They  refused  henceforth 
blindly  to  submit  themselves  to  the  traditions,  or  to 
accept  them  upon  mere  authority;  but  sought  for 
every  Halakhah  the  '-Why?"  and  "Wherefore?"  and 
at  times  carried  their  independence  so  far  as  to  cite 
the  Mishnah,  and  even  the  Scriptures,  before  the  tri- 
bunal of  Sdbarah  (Logics).'  As  in  the  days  of  Kabbi 
Judah  I,  aspiring  Babylonians  had  flocked  in  con- 
siderable numbers  to  the  Judean  academies,  so  they 
now  either  returned  to  their  native  land  and  took  the 
lead  of  colleges,  or  Palestinean  youth  attached  them- 
selves to  the  Babylonian  seats  of  learning.  Nehardea, 
Pumpeditha,  Sura,  and  other  chief  cities,  were  studded 
with  colleges  (called  Sidra),  and  filled  with  students. 
Sura  alone,  which  for  upwards  of  seven  hundred  years 
continued  to  be  the  principal  repository  of  Jewish 
learning,  numbered  twelve  hundred  pupils,  under  the 
rectorship  of  Abba  Arekha  who,  as  the  editor  of  the 
Mishnah  before  him  had  been  surnamed  Rabbi,  so  he 
now  was  named  Rabh,  teacher,  and  who,  like  his  great 
master  in  former  years,  maintained  the  poor  among 

'  Habakkuk  II,  4, 

2  Cf.  Gen.  R.  c.  17. 

3  Cf.  Berakhoth  6^,  Yeb,  72^  ib.  76,  et  al. 


THE    TALMUD.  2o3 

the  students  at  his  own  expense,  deriving  the  means 
from  his  own  estate,  which  he  cultivated  himself.' 

Rahh's  name  became  widely  known,  even  outside  of 
Babylon,  and  his  authority  was  recognized  through- 
out the  land.  It  once  occurred  that  he  officiated  as 
Meturgeman  to  R.  Shila,  the  lecturer  not  knowing 
him.  He  expounded  the  Mishnah  in  a  manner  dis- 
pleasing to  R.  Shila,  who  remonstrated  with  him; 
whereupon  he  remarked,  "The  dulcet  sound  of  the 
flute,  which  is  pleasing  to  the  noble  ear,  is  not  pleas- 
ing to  the  uncultivated  taste!  I  have  ever  thus  inter- 
preted this  passage  before  R.  Hiya  (whose  interpreter 
he  had  formerly  been),  and  he  approved  of  it."  R. 
Shila,  surprised  at  finding  in  his  Meturgeman  the 
great  teacher,  humbly  apologized,  and  invited  him  to 
take  the  seat  of  honor.  ^ 

The  next  Amoraim  generation  comprised  such  men 
as  patriarchs  R.  Gamliel  IV,  and  R.  Judah  III;  R. 
Eleazar  ben  Pedath,  R.  Ami,  R.  Assi,  R.  Hiya  ben 
Abba  and  his  brother,  R.  Simon,  and  R.  Abbuha,  in 
Palestine;  R.  Huna  in  Sura,  R.  Judah  in  Pumpe- 
ditha,  and  R.  Hasda  in  Kaphra,  in  Babylonia.  These, 
and  after  them  their  successors,  both  in  Palestine  and 
Babylon,  carried  on  the  work  of  learning  and  teach- 
ing, criticising  and  commenting  upon  the  Mishnah  for 
a  considerable  length  of  time;  but,  like  their  prede- 
cessors, the  Tannaim,  they  delivered  their  disserta- 
tions orally. 

The  Rabbis  ascribed  to  the  Talmud  a  higher  origin 
than  human  ingenuity.     They  declare  that  the  pre- 

'  Kiddushin  12^;  Yebamoth  52^. 
2  Yoma  20^ 


234  APPENDIX. 

cepts  (laid  down  in  the  Bible)  were,  together  with 
their  elucidations  (recorded  in  the  Talmud),  received 
from  Sinai.  This  theory  they  base  on  the  following 
Scriptural  passage:  ''I  will  give  to  thee  the  tablets 
of  stone,  and  the  law  and  the  commandment,  which 
I  have  written  to  teach  them,"*  which  they  explain 
as  follows:  By  ''the  tablets"  we  are  to  understand 
the  ten  commandments;  "the  law"  means  the  written  law 
(the  Pentateuch);  ''the  commandment"  represents 
the  Mishnah;  by  the  words  "which  I  have  written" 
are  meant  the  prophets  and  Hagiographa;  and  the  ex- 
pression "to  teach  them"  means  the  Gemara}  Agree- 
ably to  this  the  Mishnah  teaches  that  Moses  had  re- 
ceived the  entire  law  from  Sinai.  He  delivered  it  to 
Joshua,  by  whom  it  was  transmitted  to  the  Elders, 
who  communicated  it  to  the  prophets,  and  the  latter 
bequeathed  it  to  the  men  of  the  Great  Synod. ^  Else- 
where the  Kabbis  explain  the  method  by  which  the 
contemporaries  of  Moses  learned  the  law.  After 
Moses  himself  had  received  the  Mishnah  directly 
from  the  Almighty,  Aaron  entered,  and  was  instructed 
in  it  by  him.  Aaron  thereupon  retired  to  the  right 
of  his  teacher,  and  gave  place  to  his  sons,  who  also 
heard  the  law  explained  by  Moses.  These,  too,  took 
seats  to  the  right  and  left  of  Moses,  and  heard  him 
explain  the  law  to  the  Elders,  who  also  retired  to  one 
side,  when  the  public  at  large  was  instructed.  Aaron 
accordingly  had  by  this  time  heard  the  law  explained 


'  Exodus  XXIY,  12. 

2  Berakhoth  5*.     Cf.  Megillah  19^  and  parallel  passages. 

3  Aboth  I,  1. 


THE    TALMUD.  235 

four  times;  his  sons  thrice;  the  Elders  twice,  and  the 
congregation  once.  Moses  then  retired  and  left  Aaron 
to  repeat,  in  the  hearing  of  all,  the  law  as  explained 
to  him,  and  to  retire  at  the  close  thereof.  His  sons 
did  likewise,  and  after  them  the  Elders;  thus  each 
one  had  the  opportunity  of  hearing  every  law  four 
times  before  assuming  to  teach  the  same  to  others.^ 
The  mode  of  teaching  followed  by  the  Rabbis  was 
similar  to  that  practised  by  Socrates.  One  pro- 
pounded a  question,  another  made  a  reply.  The 
validity  of  the  answer  was  questioned  by  comparing 
it  with  Halakhoth,  apparently  differing  in  their  ver- 
dict. Explanations  were  then  made,  reasons  given 
and  discussed,  arguments  offered  and  authorities  cited 
pro  and  con,  and  the  decisions  arrived  at  by  the  ma- 
jority of  the  college,  were  adopted  as  laws.  In  this 
way  and  by  the  application  of  the  hermeneutic,  exe- 
getical  rules,  matter  to  an  enormous  amount  was 
gradually  accumulated;  but,  like  the  Mishnah  before 
its  completion  by  R.  Judah,  it  was  not  systematically 
arranged,  and  was  therefore  extremely  difficult  to 
memorize.  To  obviate  this,  R.  Johanan,  rector  of 
the  academy  at  Tiberias,  collected  the  scattered  de- 
bates and  decisions,  and  arranged  them  in  due  order 
according  to  the  Mishnah,  and  thus  laid  the  foundation 
of  the  compilation  known  under  the  name  of  Talmud 
Yerushalmi  (Jerusalem  or  Palestinean  Talmud),  and 
completed  in  the  fourth  century. ^     Of  this  Gemara 

'  Erubin  54". 

2  Great  difterences  of  opinion  exist  among  lexicographers, 
touching  the  date  of  this  compilation,  and  it  is  extremely  diffi- 


236  APPENDIX. 

only  thirty-nine  treatises  are  now  extant,  the  last  two 
Orders  (Sedarim)  having  been  lost.  TJie  Mishnah  is 
published  very  often  by  itself;  but  the  Gemara,  being 
considered  a  commentary  thereto,  is  never  printed 
without  the  text.  These  two  together  constitute  the 
Talmud. 

The  Babylonian  Jews  did  not  accept  this  work  as 
authoritative.  The  Amoraim  of  the  different  Baby- 
lonian colleges  which  grew  in  importance  as  the  Pales- 
tinean  declined,  continued  to  labor  in  the  sacred  field 
for  a  long  time  after  the  publication  of  the  Talmud 
Yerushalmi,  until  K.  Ashi,  rector  of  the  college 
at  Sura,  whom  his  contemporaries  declare  to  have 
been  the  equal  of  K.  Judah  I  in  authority  and  know- 
ledge,^ attempted  (427)  to  make  a  new  and  complete 
compilation.  He  died,  however,  in  the  midst  of  his 
work,  and  left  it  to  his  successors  to  carry  out  his 
plan.  The  work  was  completed  by  Mar  and  Meremar 
about  the  year  500,  and  published  under  the  name  of 
Talmud  Bahli  (Babylonian  Talmud),  to  distinguish 
it  from  the  similar  Palestinean  collection.  The  Baby- 
lonian Gemara  comments  on  only  thirty-six  treatises 
of  the  Mishnah,  almost  all  Gemara  on  the  first  and 
sixth  Orders  being  missing;  still  it  is  nearly  four 
times  as  large  as  its  predecessor,  and  is  the  Talmud 
par  excellence,  being  highest  in  authority  in  all  matters 
admitting  of  a  difference  of  opinion. 

cult  to  decide  with  precision.  Buxtorf  places  it  at  about  230; 
David  Ganz  at  270;  while  Maimonides,  Abarbanel  and  Elias 
Levita  would  have  it  at  370. 

'  Gittin  59a;  Sanhedrin  36*.     Cf.  supra  p.  222. 


THE    TALMUD. 


The  Talmud,  as  the  reader  of  the  foregoing  pages 
may  now  judge  for  himself,  is  a  library  in  itself.  "It 
is  a  microcosm,  embracing  heaven  and  earth. ' '  It  treats 
on  civil  and  religious  law,  on  history,  mathematics, 
astronomy,*  medicine,  metaphysics,  theosophy.  It 
passes  from  law  to  myth,  from  jest  to  earnest;  it  is 
replete  with  chaste  diction,  legendary  illustration, 
beautiful  imagery,  apposite  quotations,  touches  of 
pathos,  bursts  of  genuine  eloquence,  finished  rhetoric, 
graphic  description.  Now  and  then  the  dry  subject 
matter  of  the  Halakhah  is  relieved  by  flashes  of  wit, 
sallies  of  humor,  strokes  of  sarcasm,  amusing  expres- 
sions or  comparisons. 

Some  maintain  that,  in  the  days  of  the  Talmudists, 
the  position  of  the  llebrew  woman  in  social  and  do- 
mestic life  was  not  better  than  that  of  a  slave.  The 
student  of  the  Talmud,  however,  finds  no  authority 
for  such  a  charge.  One  or  two  illustrations,  quoted 
from  among  the  numerous  passages  in  the  writings 

'  We  have  already  seen  (supra  p.  209)  how  R.  Joshua  foresaw 
the  reappearance  of  a  comet,  and  .so  saved  himself  and  R.  Gam- 
liel  I  from  starvation.  R.  Gamiiel  himself,  too,  is  represented 
as  an  expert  astronomer  in  his  day  (Rosh  flashanah  24*),  and 
that  he  made  use  of  something  like  the  telescope  (Erubin  43''). 
Rabh's  colleague,  Samuel,  said  of  himself  that,  except  as 
as  to  the  "tailed  stars"  (comets),  the  courses  of  the  heavenly 
bodies  were  as  familiar  to  him  as  Xehardaa,  where  he  lived 
(Berakhoth  5S^}. — In  our  age,  when  the  sciences  are  so  assidu- 
ously, successfully,  and  almost  universally  cultivated,  all  this 
may  not  be  considered  extraordinary,  but  these  Rabbis  lived 
some  seventeen  hundred  years  ago,  when  the  most  refined  na- 
tions were  still  ignorant  of  the  erratic  movements  of  the 
planets. 


238  APPENDIX. 

of  the  Rabbis,  will  disabuse  the  minds  of  those  who 
have  been  laboring  under  this  false  impression. 

On  certain  days  of  the  year  the  Jewish  maidens,  all 
clad  in  white,  that  the  poor  and  the  rich  might  appear 
without  distinction,  went  out  to  the  vineyards,  for- 
mally invited  the  young  men  to  join  them  in  the 
dance,  and  half  in  jest,  half  in  earnest,  demanded 
their  hands  in  marriage.  These  candidates  for  matri- 
mony stated  their  various  claims  as  best  they  knew 
how.  Those  endowed  with  personal  beauty  dwelt 
upon  that;  the  children  of  noble  birth  praised  high 
descent,  and  spoke  of  the  great  influence  true  aristo- 
cracy has  on  strict  fidelity ;  while  those  who  could  boast 
of  neither  beauty  nor  noble  blood,  dilated  on  the 
transitory  character  of  these  personal  advantages  and 
the  endurance  of  morality.^ 

This  alone  is  sufficient  to  show  that,  unlike  the 
Eastern  woman  of  the  other  races,  the  Jewish  woman 
did  not  lead  a  life  of  seclusion,  but  could  freely  move 
in  society,  and  take  part  in  domestic  affairs.  It  is 
true,  when  a  pedantic  woman  once  began  to  argue 
on  advanced  ethics  with  Rabbi  Eleazer,  he  directed 
her  to  pay  attention  to  domestic  economy,  saying, 
"Woman's  wisdom  should  be  confined  to  the  spin- 
dle;"^ still  the  Rabbis  prescribe  the  utmost  respect 
for  the  housewife.^  They  even  prohibit  speaking  to 
her  in  a  loud  voice.  ''If  thy  wife  is  small,"  says 
a   Talmudic    maxim,     "bow   down   and   whisper   to 

'  Mishnah,  end  of  Taanith. 

2  Yoma  66^ 

3  Baba  Mezia  59\ 


THE    TALMUD.  239 

her.  "^  We  also  find  that  occasionally  women  took 
part,  with  the  consent  of  their  husbands  or  fathers,  in 
philosophical  debates. 

A  heretic  once  remarked  to  R.  G-amliel,  "Your 
God  cannot  be  strictly  honest,  else  he  would  not  have 
put  Adam  to  sleep  and  stolen  a  rib  from  him."  The 
Rabbi's  daughter  thereupon  requested  permission, 
which  was  granted,  to  make  reply.  She  then  re- 
quested the  scorner  to  direct  her  to  the  seat  of  Justice. 
•'And  wherefore?"  inquired  the  puzzled  heretic;  'Svhat 
has  happened  that  requires  thy  attendance  on  the 
Judge?"  "Well,"  said  she,  "some  thieves  invaded 
our  premises  last  night,  stole  a  silver  pitcher  from 
us,  and  left  a  gold  one  in  its  stead."  "Would  that 
such  misfortunes  happened  to  me  daily!"  exclaimed 
the  heathen.  "If,  then,  you  are  of  such  an  opinion," 
retorted  the  maiden,  "why  object  to  the  stealing  of  the 
rib?  Did  Adam  not  receive  in  its  stead  a  companion 
to  wait  on  him  and  to  share  with  him  his  joys  and  his 
sorrows?" 

"I  do  not  mean  exactly  the  rib,"  rejoined  the  quib- 
bler;  "but  I  think  the  manner  in  which  it  was  taken 
unworthy  of  the  Deity.  He  certainly  could  have 
accomplished  the  same  while  Adam  was  awake!" 
Thereupon  she  took  a  piece  of  raw  meat,  washed, 
salted,  patted  and  roasted  it  in  his  presence,  and  in 
conclusion  invited  him  to  partake  of. her  prepara- 
tion; but  he  declined,  declaring  that,  after  witnessing 
the  process  of  dressing  the  meat,  his  appetite  was 
gone,      "Ah!"     ejaculated    the    triumphant    young 

'  Ibid. 


240  .  APPENDIX. 

woman;  ''exactly  what  might  have  been  the  case  with 
Adam.  Had  he  seen  the  process  of  extracting  the  rib 
and  forming  the  woman,  he  might  not  have  liked  to 
associate  with  her,  as  when  he  beheld  her  complete, 
graced  with  feminine  loveliness  and  beauty."^ 

To  the  question  why  woman  was  not  created  out  of 
any  other  part  of  rnan's  body,  the  humorous  Aggadaists 
reply:  Woman  was  not  formed  out  of  man's  head, 
that  she  be  not  too  proud  and  carry  her  head  too 
high;  not  out  of  his  ear  or  eye,  that  she  may  not 
become  too  curious,  desiring  to  see  and  hear  every- 
thing; not  out  of  his  mouth,  that  she  may  not  be- 
come too  talkative;  not  out  of  his  heart,  that  she 
be  not  too  jealous;  finally,  not  out  of  his  hand 
or  foot,  that  she  may  not  learn  to  touch  everything 
or  go  everywhere.  She  was  formed  out  of  man's  rib, 
which  is  hidden  from  view,  that  her  origin  might 
serve  her  as  an  emblem  of  modesty,  virtue  and  mode- 
ration.^ • 

The  Talmudists  very  forcibly  recommend  timely 
marriage,^  and  say  that  a  man  without  a  wife  is  with- 
out happiness,  without  joy,  and  without  rest;*  while 
R.  Eleazar  says:  "A  man  without  a  wife  is  no 
man."^ 

Equally  absurd  is  the  charge  that  the  Rabbis 
despised  manual  labor.     We  have   already  seen  how 

'  Sanhedrin  39a. 
^Yalkut,  §24. 
=»  Aboth  V,  §  24. 

*  Yalkut.  lb..  §  23. 

*  Ibid.;  Yebamoth  63a. 


THE    TALMUD.  241 

many  of  the  Talmudic  fathers  themselves,  while  their 
eagerness  for  the  study  of  the  law  was  quenchless, 
earned  their  suhsistence  by  some  handicraft.  There 
is  therefore  no  need  for  us  to  enter  on  a  lengthy  dis- 
sertation on  this  question;  but  we  will  simply  quote  a 
few  maxims  of  the  Talmudists  on  this  head.  R. 
Judah  ben  Ilai  says:  ''Labor  honors  the  laborer."^ 
He  even  goes  farther  than  this,  and  says:  ''Whoso- 
ever doth  not  teach  his  son  a  trade,  is  as  culpable  as 
if  he  had  accustomed  him  to  robbery."^  R.  Gamliel 
III,  says:  "It  is  proper  to  combine  the  study  of  the 
law  with  a  worldly  pursuit;  for  busying  ourselves  with 
both  causes  us  to  forget  sin.  All  study  of  the  law, 
which  is  not  combined  with  labor,  will  at  length 
come  to  an  end,  and  be  the  cause  of  sin."^  "Love 
work  and  despise  titles,"  was  a  favorite  maxim  of 
Shemaiah.'*  Moreover,  the  Rabbis  recommend,  in  case 
of  necessity,  to  engage  in  the  lowest  kind  of  drudgery, 
and  avoid  depending  on  public  support.  "Excoriate 
the  dead  animal  on  the  public  street,"  says  Abba 
Arekha,  "and  take  thy  earnings,  and  never  say,  I  am 
a  priest,  I  am  a  great  man,  and  such  work  is  not  be- 
coming a  gentleman. "° 

The  ethical  teachings  of  the  Rabbis,  their  adages, 
apothegms,  maxims,  axioms,  pervade  almost  every 
page  of  the  Talmud,  and  a  large  number  of  the  earlier 
ones  are  recorded  in  the  Pirke  Ahoth  (chapters,  frag- 

'  Nedarim  49^. 

2  Kiddiushin  29^;  Ibid  Tosefta  I,  §  11;  Mekhilta  Bo,  §  18. 

3  Aboth  II.  §  2;  Cf.  Mekhilta  Wayassa,  §  2. 
*  Ibid  I,  §  10. 

'  Pe.sahiin  113=^;  Baba  Bathra  110^. 
16 


242  APPENDIX. 

ments,  commonly  called  Ethics  of  the  Fathers)  and 
Aboth  de  E.  Nathan.^ 

We  deem  it  not  out  of  place  to  transcribe  some 
of  them. 

lu  the  name  of  the  Great  Synod  the  following  three 
great  principles  are  preserved:  Be  cautious  in  passing 
sentence,'  train  many  disciples,  and  make  a  hedge 
for  the  law.^ 

Himon  the  Just,  the  last  of  the  Great  Synod,  taught: 


'  "As  Grecian  philosophy  began  with  single  sentences  and 
proverbs  of  the  so-called  Seven  Sages,  so  must  we  regard  the 
profound  maxims  and  ascetic  doctrines  of  the  first  teachers, 
which  are  contained  in  the  'Ethics  of  our  Fathers'  and  the 
'Aboth  of  E.  ^N^athan,'  as  the  beginning  and  origin  of  the  philo- 
sophical studies  among  the  Jews.'" — Guide  for  rational  Inqui- 
ries into  the  Biblical  Writings,  page  63. 

^Cf.  supra  n.  255. 

3  Aboth  I,  §  1,  Cf.  supra  n.  34. — This  means  to  establish 
guard-laws,  sepes  legis.  Although  the  Talmud  burdened  the 
Jewish  religion  with  an  infinite  number  of  ceremonial  obser- 
vances, in  the  execution  of  Avhich  the  Rabbis  were  extremely 
punctilious,  still  the}'  admit  that  ceremonial  worship  is  impor- 
tant only  inasmuch  as  it  serves  to  inspire  sentiments  and  feel- 
ings raising  the  soul  to  God.  Illustrations  are  quoted  in  the 
following  Mishnah:  Quoting  the  Scriptural  passage  (Exodus 
XVII,  11),  "When  Moses  held  up  his  hand  Israel  prevailed," 
the  question  is  raised.  Why?  did  the  hands  of  Moses  carry  on 
the  battle?  Whereupon  the  Kabbis  answer:  Not  the  lifting  up 
of  hands  by  Moses  gained  the  victory  over  Amalek,  and  not 
the  brazen  serpent  raised  on  a  pole  in  the  wilderness  (see  Num- 
bers XXI,  9)  healed  the  Israelites  from  the  serpent-stings;  but 
by  these  ceremonies  the  observers  were  induced  to  raise  their 
eyes  and  hearts  to  their  Heavenly  Father. — Rosh  Hashauali  29 '. 


THE   TALMUD.  243 

The  world  ^s  founded  upon  three  great  principles,  to 
wit:     Law,  Worship  and  Benevolence.* 

Antigonus  of  Sokho  taught:  Be  not  like  those  ser- 
vants who  wait  on  their  master  with  the  expectation  of 
receiving  reward;  hut  be  like  those  who  serve  their 
master  without  anticipating  pay,  and  then  will  true 
fear  of  God  be  in  you.^ 

Jose  ben  Joeser  taught:  Let  thy  ho-use  be  a  rendez- 
vous for  the  wise  men,  rest  at  their  feet,  and  drink  in 
eagerly  their  words. ^ 

Joshua  ben  Perahiah  said:  Engage  for  thyself  a 
teacher  and  procure  classmates,  and  judge  all  mankind 
favorably.* 

Nittai,  the  Arbellite,  said:  Keep  away  from  an 
evil  neighbor,  and  never  associate  with  a  wicked 
person,  nor  forget  that  there  may  come  punishment 
for  sin.* 

Judah  ben  Tabbai  was  wont  to  say:  When  called 
upon  to  decide  in  a  law-suit,  do  not  turn  advocate; 
while  the  contending  parties  are  on    trial,    consider 

^  lb.,  §  2. — Elsewhere  the  Kabbis  say,  Benevolence  having  a 
wider  scope,  is  more  meritorious  than  charity,  in  these  three 
respects :  charity  calls  merely  for  an  outla}'  of  money,  benevo- 
lence requires  both  wealth  and  body;  charit}'  is  bestowed  only 
on  the  needy  poor,  benevolence  must  be  exercised  towards 
the  rich  as  well  as  the  poor;  charity  can  be  given  only  the  liv- 
ing, benevolence  can  be  bestowed  also  upon  the  dead. — Succah 
49''. 

« Ibid  §  3. 

3  Ibid  §  4. 

« Ibid  §  6. 

Mbid  §  7. 


244  APPENDIX. 

"both  wrong;  when  they  are  gone,  and  submitted  to 
the  sentence,  look  upon  both  as  innocent.^ 

Abtalion  endeavored  to  inculcate  this  principle: 
Ye  learned  men,  be  careful  how  you  express  your 
ideas,  that  your  disciples  may  not  misunderstand  you, 
and  thus  be  led  astray.^ 

Hillel  was  the  author  of  these  maxims:  He  who  is 
ambitious  of  magnifying  his  name,  destroys  it.^  If  I 
do  not  act  for  myself,  who  shall  do  it  for  me?  If  I 
think  only,  of  myself,  what  do  I  amount  to?  If  I  act 
not  noAv,  when  may  I  ?* 

Shammai  said:  Make  the  study  of  the  law  thy  chief 
occupation;  say  little  and  do  much;  and  receive  every 
man  with  a  friendly  countenance,^ 

K.   Gamliel  I   taught :     Engage  a  preceptor,   free 

'Ibid  §8. 

*Ibicl§ll. 

•^Ibid  §13. — Elsewhere  we  are  taught:  Him  who  humbleth 
himself,  will  God  extol ;  but  him  who  exalteth  himself,  will 
the  Holy  One  humble.  Greatness  flees  from  him  who  hurries 
after  it,  but  follows  him  who  runs  from  it. — Eyubin  13b;  cf. 
Berakhoth  44*;  ISTedarim  55a. 

^  Ibid  §14. 

5  K.  Meir  expressed  the  same  sentiments  in  different  words. 
He  said:  Busy  thyself  less  with  worldly  aftairs  than  with  the 
study  of  the  law,  and  be  humble  before  all  men.  (Ibid  IV,  § 
12.)  R.  Simon  ben  Johai  thought  otherwise.  The  punctual 
observance  of  the  law,  argues  he,  was  possible  only  for  those 
who  were  fed  on  manna  or  the  tithes.  How  should  any  one  be 
able  to  study  the  law  day  and  night,  if  he  is  troubled  with  the 
cares  of  food  and  raiment? — Mekhilta  Wayassa,  §  2. 

6  Ibid  §  15. 


THE   TALMUD.  245 

thyself  from  all  doubt,  and  do  not  express  too  many 
opinions.^ 

His  son  Simon  expressed  these  sentiments:  All  my 
lifetime  have  I  spent  among  the  learned,  and  have 
discovered  naught  more  beneficial  than  silence.  Not 
the  preaching  is  the  object,  but  the  practice.  He 
who  speaks  much,  causes  sin,^ 

R.  Simon  ben  Gamliel,  of  Jabne,  was  wont  to  say: 
The  welfare  of  humanity  is  maintained  by  virtue  of 
the  application  of  the  following  three  cardinal  prin- 
ciples: Truth,  Justice  and  Peace.' 

R.  Judah  I  laid  down  this  plan  for  man's  guidance 
through  life:     He  should  always  choose  for  himself  a 

'  Ibid  §  16. 

*  Ibid  §  17. — The  following  anecdotes,  preserved  in  the  Agga- 
dah,  we  deem  too  good  to  be  omitted  from  this  connection,  R. 
Gamliel,  the  father  of  the  author  of  these  sentiments,  once 
ordered  his  steward,  Tabi,  to  procure  something  excellent  from 
the  market  for  a  feast  he  was  about  to  give.  Tabi  departed,  and 
soon  returned  with  a  tongue.  On  another  occasion  R.  Gamliel 
ordered  him  to  bring  something  of  inferior  quality.  The  servant 
obe^ved,  but  soon  returned  again  with  a  tongue.  Surprised  at 
this  procedure,  the  Rabbi  inquired,  IIow  is  this?  When  once  I 
ordered  the  best,  thou  gavest  me  tongue ;  and  now,  when  I 
want  something  inferior,  thou  again  providest  me  with  tongue ! 
Thereupon  Tabi  replied:  From  this  originates  all  good,  and  from 
the  same  all  evil  springs.  "When  the  tongue  is  good,  there  is 
nothing  better  than  it;  when  the  tongue  is  bad,  then  there  is 
nothing  worse ! — When  once  Rabbi  Judah  I  invited  his  disciples 
to  a  repast,  he  spread  before  them  tough  and  tender  tongues. 
They,  of  course,  chose  the  tender  ones,  when  their  host  re- 
marked :  May  your  tongues  be  so  soft  and  smooth  while  argu- 
ing Avith  each  other! — Yalkut,  Psalms,  §  767. 

3  Ibid  §  18. 


246  APPENDIX. 

path  which  may  be  an  ornament  to  him  who  walks 
therein,  and  which  may  procure  for  him  the  reverence 
of  mankind.  He  should  be  as  careful  of  the  observ- 
ance of  a  light  precept  as  of  an  important  one,  for  no 
one  knows  the  reward  for  the  execution  of  the  com- 
mandments. He  should  balance  the  (temporal)  loss 
sustained  by  obedience  to  a  precept  with  its  (spiri- 
tual) recompense,  and  the  (material)  profit  accru- 
ing from  a  transgression  with  the  (spiritual)  injury 
it  occasions.  He  should  constantly  reflect  of  these 
three  things,  and  he  will  not  lapse  into  the  power 
of  sin;  he  should  always  be  mindful  of  what  is  above 
him  :  a  seeing  eye,  a  hearing  ear,  and  that  all  his 
actions  are  written  down  in  a  book.^ 

Of  his  son,  R.  Gamliel  III,  the  following  apothegms 
are  preserved;  All  who  are  engaged  in  the  services  of 
the  congregation  ought  to  act  from  pure  motives 
(for  Heaven's  sake),  then  will  the  merits  of  their 
pious  ancestors  support  them,  and  their  righteous- 
ness will  stand  unto  eternity.  Be  cautious  in  your 
intercourse  with  the  powers  that  be  (Romans),  as  they 
favor  none  but  when  it  suits  their  own  interest;  they 
show  themselves  as  friends,  while  they  can  derive 
some  advantage,  but  do  not  aid  a  man  in  time  of  his 
need.  Do  God's  will,  as  if  it  were  thine  own,  that  He 
may  accomplish  thy  will,  as  if  it  were  His.  Sacri- 
fice thy  will  for  the  sake  of  His,  that  He  may  sacri- 
fice the  will  of  others  for  the  sake  of  thine.  ^ 

1  Ibid  II,  §  1. 
"  Ibid  §§  2-4. 


THE   TALMUD.  247 

K.  Eliezer  said:  Let  the  honor  of  thy  fellow-man 
he  as  dear  to  thee  as  thine  own:  do  not  fall  easily  into 
passion;  repent  one  day  before  thy  death;'  and  warm 
thyself  by  the  fire  of  the  sages. ^ 

As  the  New  Testament  was  written  during  the  pro- 
gress of  the  Talmud,  and  as  some  of  the  earliest 
Christian  writers  were  reared  under  rabbinical  influ- 
ence, we  should  deem  our  sketch  incomplete  if  we  re- 
frained from  analyzing  some  doctrinal  portions  of  the 
former  in  their  relationship  to  the  latter.^  We  propose 
to  quote  passages  from  Saint  Matthew,  and,  following 
the  order  of  the  Talmud,  place  next  to  them  their 
equivalents  from  Rabbinic  sources.  And  thus  we 
begin: 

"I  say  unto  you,  that  if  two  of  you  shall  agree  on 
earth  as  touching  anything  that  they  shall  ask,  it 
shall    be  done  for  them  of  my  Father   which  is    in 

'  When  asked  by  his  disciples  how  any  man  could  forsee  the 
exact  day  of  his  death,  and  thus  avail  himself  of  this  advice, 
to  prepare  himself  one  day  before  to  meet  death,  the  author  of 
these  maxims  replied  :  Because  no  one  is  certain  that  the  mor- 
row will  see  him  alive,  he  must  consider  every  day  as  his  last, 
and  repent  daily  (Sabbath  153a). 

*  Ibid  §  15. 

3  The  learned  author  of  "Judaism,  its  Doctrines  and  Duties" 
(p.  6,)  .says:  "There  are  three  different  Talmuds,  in  the  opinion  of 
those  who  believe  in  the  Bible,  viz:  the  Talmud  of  the  Hebrews, 
comprising  the  whole  of  the  ancient  rabbinical  literature;  the 
Talmud  of  the  Christians,  containing  the  Xew  Testament  and 
its  commentaries;  and  the  Talmud  of  the  Mohammedans,  con- 
sisting of  the  Koran  and  its  commentaries.  Either  of  these 
Talmuds  was  intended  to  expound  the  Bible  from  peculiar 
stand-points,  influenced  by  various  conceptions  and  convic- 
tions, ' 


248  APPENDIX. 

heaven.  For  where  tivo  or  three  are  gathered  together  in 
my  name,  there  am  I  in  the  midst  of  them" — xviii,  19-20. 

K.  Isaac  raises  tlie  question,  Whence  do  we  infer 
that  the  Holy  One,  blessed  be  He,  is  present  at  the 
house  of  prayer?  From  the  passage  in  Psalms 
(Ixxxii,  1)  :  ''God  standeth  in  the  congregation  of  the 
godly."*  Whence  do  we  learn  that  when  ten  con- 
gregate together  in  prayer,  the  Shechina  (Theocracy) 
abideth  with  them?  From  the  same  verse  {Edali 
representing  ten).  Whence  do  we  know  that  the  same 
is  the  case  with  three  persons?  From  the  Psalmist's 
saying  (Ibid.):  ''God  judgeth  in  the  midst  of  the 
judges."^  Whence  do  we  know  that,  when  only  two 
persons  are  engaged  in  the  study  of  the  law,  the 
Shechina  is  with  them?  From  the  verse  (Malachi 
iii,  16):  ^'Then  they  that  feared  the  Lord  spoke 
often  one  to  another,  and  the  Lord  hearkened  and 
heard  it."  And  whence  do  we  learn  that  even  if  one 
occupies  himself  with  the  law,  the  Shechina  watches 
over  him?  From  the  passage  (Exodus  xx,  24):  "In 
all  places  where  I  record  my  name  will  I  come  unto 
thee,  and  I  will  bless  thee."^ 

''I  say  unto  you,  love  your  enemies,  bless  them 
that  curse  you,  do  good  to  them  that  hate  you,  and 

'  We  cannot  always  quote  Scripture  from  the  "Authorized 
Version;"  it  very  often  misrepresents  the  original.  Eight 
here  we  have  an  instance:  The  original  reads,  "Adath  El," 
meaning  congregation  of  God. 

*  The  Hebrew  in  this  case  is  Elohim,  and  means,  as  we  trans- 
late it,  judges.  See  Exodus  XXI^  6,  where  this  term  is  so  ren- 
dered.— Three  persons  constituted  a  Beth-Din.,  court  of  justice 
(Cf.  supra  n.  190). 

3  Berakhoth  6^^;  Aboth  III,  §  7. 


THE    TALMUD.  249 

pray  for  them  that  despitefully  use  you  and  persecute 
you"  (v.  44). 

In  the  Talmud  we  read  of  a  Rabbi  who  was  greatly 
vexed  by  a  neighbor  of  his,  and  was  about  to  invoke 
the  curse  of  heaven  upon  his  tormentor,  but  he  con- 
cluded that  it  was  not  meet  for  the  righteous  to  call 
down  punishment.^  R.  Meir  was  once  provoked  at  a 
foul-mouthed  neighbor,  who  slandered  him  repeat- 
edly. He  was  about  to  curse,  but  his  noble  spouse 
reproved  him  by  pointing  out  that  David  had  prayed 
(Psalm  civ,  35):  "May  sin  cease  from  off  the  earth," 
but  had  not  asked  for  the  extermination  of  the  sinful. 
Moreover,  she  said,  "look  at  the  conclusion  of  David's 
prayer.  He  says:  'The  wicked  will  be  no  more,'  as 
soon  as  sin  will  cease  from  the  world.  Rather  pray 
that  thy  persecutors  should  repent."^  Again:  Those 
who  are  insulted,  and  revile  not  in  return,  bear  invec- 
tives in  silence,  are  persecuted  and  retaliate  not,  are 
meant  by  the  Scriptural  expression  (Judges  v.  31) : 
"Those  that  love  Him  will  be  as  the  rising  sun  in  his 
might.  "3 

"Blessed  are  the  merciful,  for  they  shall  obtain 
mercy"  (v.  7). 

R.  Gamliel  says:  "Whosoever  is  merciful  to  his  fel- 
low creature,  to  him  Heaven  is  merciful."* 


'  Berakhoth  6a. 

» Ibid  10*.     Cf.  supra  p.  220. 

3  Sabbath  88";  Joma  23»;  Gittin  36a. 

*  Sabbath  151^    Compare  also  Bezah  33b.  where  the  version^ 
is  entirely  different,  although  it  amounts  almost  to  the  same  in 
meaning;. 


250  APPENDIX. 

''All  things  whatsoever  ye  would  that  men  should 
do  to  you,  do  ye  even  so  to  them:  for  this  is  the  law 
and  the  prophets"  (vii,  12). 

K.  Akiba  taught:  ''  Love  thy  neighbor  as  thyself  " 
is  the  foundation  of  the  whole  law.'  Hillel  I  said; 
Whatever  is  hateful  unto  thyself,  do  not  unto  thy  fel- 
lowman.  This  is  the  essence  of  the  law;  the  rest  is 
but  its  commentary.^ 

"Blessed  are  the  peace-makers,  for  they  shall  be 
called  the  children  of  God"  (v.  9). 

Hillel  taught:  Be  a  disciple  of  Aaron,  loving  peace 
and  pursuing  it.^  R.  Simon  ben  Gamliel  said:  The 
welfare  of  the  world  is  maintained  by  virtue  of  the 
application  of  the  following  three  cardinal  principles : 
Truth,  Justice  and  Peace.*  He  who  maketh  peace 
between  man  and  man,  enjoys  the  fruits  of  his  works 
in  this  world,  while  the  principal  reward  he  will 
receive  in  the  hereafter.* 

''What  is  a  man  profited  if  he  shall  gain  the  whole 
world  and  lose  his  own  soul,  or  what  shall  a  man  give 
in  exchange  for  his  soul?"  (xvi,  26.) 

R.  Judah  I  taught  that  man  should  balance  the 
material  loss  sustained  by  the  performance  of  a  pre- 
cept, with  the  spiritual  recompense;  and  the  gain 
accruing  from  a  transgression,  with  the  spiritual 
injury  it  occasions.^ 

'  Yer.  N'edarim  9. 

8  Sabbath  31»;  Aboth  de  R.  Nathan  XY.     Yide  supra,  p.  202, 
where  the  occasion  on  which  this  was  said  is  recorded, 
=»  Aboth  I,  §  12 
*  Ibid  §  18. 
'  Peah  I. 
6  Aboth  ir.  §  1. 


THE    TALMUD.  251 

''Render  unto  Ctesar  the  things  which  are  Csesar's, 
and  unto  God  the  things  which  are  God's"  (xxii,  21). 

R.  Eliezer  said:  Render  unto  God  of  the  things 
which  are  his  own:  thou  and  all  that  thou  callest  thine 
are  his.^ 

"Judge  not,  that  ye  be  not  judged"  (vi,  1), 

In  the  name  of  the  Great  Synod  the  principle  is  pre- 
served: Be  cautious  in  passing  sentence.^  R.  Joshua 
constantly  endeavored  to  teach  his  disciples  to  judge 
all  mankind  favorably.^  Hillel  taught:  Judge  not 
thy  neighbor  until  thou  art  placed  in  his  circum- 
stances.* Further  we  read:  Man  is  measured  with 
the  same  measure  he  uses  for  others.* 

"Ye  are  the  light  of  the  world"  (v.  14). 

The  Talmudists  very  often  styled  their  savants 
Lights.  R.  Meir  was  so  called  because  he  enlightened 
the  mind's  eyes  of  the  wise  men.^  R.  Nehorai  was  so 
styled  for  the  same  reason.^  The  same  epithet  was 
also  applied  to  R.  Johanan  ben  Zakkai,  the  preserver 
of  the  Oral   law  at  the  downfall  of  Judea.^ 

"Take  heed  that  ye  do  not  your  alms  before  men  to 
be  seen  of  them"  (vi,  1). 

R.  Janai  saw  a  benefactor  dispensing  alms,  and 
he   admonished   him,    saying:     "It   were   better   for 

1  Abotli  III,  §  8. 

2  Ibid  I,  §  1. 
'  Ibid  §  6. 

*  Ibid  II,  §  5. 

*  Sauhedrin  100a. 

«  Cf.  supra,  p.  217. 

»  Erubin  13^. 

"  Aboth  de  R.  mthan,  XXIV. 


262  APPENDIX. 

thee  to  give  nothing  than  to  do  so  publicly  and  make 
the  poor  blush.  "^ 

^'Behold  the  fowls  of  the  air,  for  they  sow  not, 
neither  do  they  reap,  nor  gather  into  barns;  yet  your 
heavenly  father  feedeth  them"  (vi,  26-28). 

Abba  Arekha  says:  The  Holy  One,  blessed  be  He, 
observes  and  sustains  all  his  creatures,  from  the  horn 
of  the  rhinoceros  to  the  ova  of  the  minutest  insect.  ^ 
Hast  thou  ever  seen  the  fowl  of  the  forest  or  the  beast 
of  the  field  laboring  for  its  sustenance?  God  feedeth 
them  without  their  labor.  ^ 

''Be  ye  not  called  Rabbi"  (xxiii,  8). 

Shemaiah  said:  Love  work  and  despise  titles.* 
Hillel  foretold  destruction  to  him  that  made  use,  for 
his  personal  aggrandizement,    of  the  ''crown  of  the 

'  Haggiga  5*. — The  Kabbis  were  very  scrupulous  in  this  re- 
spect, as  the  following  anecdote,  one  out  of  the  many,  will  show. 
Mar  Ukbah  had  a  poor  neighbor,  whom  he  stealthily  supported 
by  throwing  into  his  house,  through  an  aperture  in  the  door, 
four  sous  every  day.  The  recipient  of  this  bounty  tried  to  de- 
tect his  benefactor,  but  in  vain.  As  soon  as  the  money  was 
deposited,  the  Rabbi  sped  away.  Once,  however,  the  Eabbi, 
accompanied  b}^  his  wife,  deposited  the  alms  at  the  usual  hour, 
when  suddenly  the  door  opened  and  the  poor  man  appeared  on 
the  scene.  The  couple  hurried  away,  and  noticing  that  their 
inquisitive  pursuer  was  gaining  on  them,  they  threw  themselves 
into  an  oven,  the  only  shelter  they  could  find,  to  escape  dis- 
covery and  avoid  making  the  needy  one  blush,  for  their  maxim 
was,  Man  should  rather  throw  himself  into  the  fire  than 
humiliate  his  fellow-creature. — Ketuboth  67*>. 

*  Sabbath  lOTb;  J^bodah  Zara  3»> 
3  Kiddushin  82. 

*  Aboth  I.  §  9. 


THE    TALMUD.  253 

law,"  and  similarly  R.  Zadok.^  Be  not  ambitious, 
and  do  not  covet  honors,  was  a  standing  maxim  with 
the  Talmudists.^ 

We  might  thus  go  on  ad  infinitum  quoting  New 
Testament  doctrines  and  their  Talmudic  parallels; 
but  time  and  space  bid  us  desist,  and  take  leave  from 
our  readers. 


'  Ibid  Y\.  §  7. 
« Ibid  YI,  §  5. 


IXDEX. 


Bold  faced  figures  denote  the  Sections ;   plain  ones,  the  Notes ; '  and  those 
enclosed  in  [  ],  the  pages  of  the  Appendix. 


Ab-Beth-Din 55 

Abduction,  cf.  Kidnapping, 

Abridgment  of  parental  power 106 

slavery 414 

Abtalion [193,  198,  244] 

Accessories,  in  general 274 

homicide 34,  128,  297 

Accidental  homicide 35 

by,  or  of  high  priest 406 

in  city  of  refuge 135 

Accuser,  cf.  Prosecutors. 

a  single,  how  treated  259 

Action  required  to  constitute  crime ,13,  36,  37,  144 

exceptions  to  this  rule 36.  62 

Adulescence 49 

Adultery .39,  97 

by  a  priest's  daughter 37 

Affinity,  cf.  Relationship. 

Age  of  liability  to  capital  punishment 50,  182-188 

Agency  in  crime 155 

Akiba,  R 6,  391,  [211-215] 

Amercement,  cf.  Damages 402 

Antigonus [192,  243] 

Appeals,  court  of 198,  62 

how  carried 22G 

Apostasy,  communal 38,  33,  106 

individual,  cf.  Idolati\y. 

Argument  must  be  offered  for  defendant 101,  330 

255 


256  INDEX. 

Arrest  of  accused 79,  84,  40,  71 

Astronomy  cultivated  by  the  Rabbis 205,  [209,  237] 

Babylonian  Talmud [236] 

Banishment,  of.  Exile. 

Bannaa,  R.,  amends  a  Roman  legal  maxim 428 

Being,  what  constitutes  a  legal 38,  136-143 

Benefit  of  clergy 45 

Beruria [218-220] 

Bestiality 36,  87 

Beth-Dill  (court) 190 

Between  life  and  death 116-120,363 

Blasphemy 26,  88,  128,  395 

when  punishable 91 

Blindness  disqualifies  the  witness 77 

Bribing  a  judge 67 

what  is  viewed  as  such 236 

Bruising  a  parent 29,  98 

Burglary 19,  34,  113 

Burial  of  convicts 131,  398 

refugees 408 

Burning,  mode  of  execution  by 124,  383-385 

offences  punished  with 27 

Capital  Crimes 26-29 

classification  of... 19.  30,  101 

number  of,  by  Rabbinic  law 7,  19,  30,  101 

in  England 3,  9 

Greece 2 

punishments 25 

aggravated  by  other  nations,  372,  383,  391.  419 

alleviated  by  the  Jews 363,  120,  382 

inadequacy  of. 18 

modes  of,  by  Rabbinic  law 123-126 

in  England ;87,  390,  395 

Greece  and  Rome,  86.  87, 91,  383, 391 

other  countries  91,  383,  387,  391 

not  accompanied  by  other  punishments 18 


INDEX.  257 

Capital  punishments. — Continued. 

opposed  by  some  Rabbis 6,  9,  68 

right  to  inflict,  taken  from  the  Jews 33,  224 

Cautioning  witnesses 78-79 

Children,  status  of,  not  affected  by  parental  crimes 133,  401 

suffer  for  parental  crimes  in  other  countries... 40 1-403 

Circumstantial  evidence 83,  287 

City  of  refuge 76,  134,  407 

Collectors  of  imposts 77,  271,  141 

Collision  with  irresponsible  parties 46 

Commutation  for  injuries,  cf.  Damages 8,  23 

in  homicide,  not  permitted 95,  405 

practised  by  other  nations,  95, 123, 40S 

in  England 95 

Competent  tribunal 69 

witnesses 76,  260 

Conditions,  cf.  Provisos. 

Confession  before  execution 120,  371 

in  capital  cases,  not  admissible 93,  311 

finable  cases,  exempts  from  fine 76 

Confiscation,  not  in  vogue  among  the  Jews 133 

practised  among  other  nations 402-403 

Confutation  of  witnesses 31,  95,  317 

effect  of,  on  the  case 97 

witnesses 31,  97,  319,  323,  324 

Consummation,  the 133-137  and  notes. 

Convict,  escaped 115,  359 

incompetent  witness .....77 

on  the  way  to  execution 118-130 

rehabilitation  of 140-141 

when  he  cannot  be  identified 137,  389 

Corporal  punishment,  cf.  Flagellation. 

not  accompanied  by  fine 62 

Correcting  testimony 91,  307 

Counsel,  excluded  from  Jewish  courts 327 

Counting  the  votes 106 

Court,  cf.  Synhedrion. 

of  Three 53, 192,  226 

17 


258  INDEX. 

Crimes 7, 9,  30,  101 

and  penalties 30-39 

committed  under  duress 14,  47.  48 

Cross-examination 91,  305 

Cruel  laws  are  evaded , 3,  6 

do  not  prevent  crime 5 

Cruelty  of  ancient  laws  accounted  for 3 

Culpable  homicide 36 

penalty  of. 37 

-Cursing  a  parent 36,  91 

Damages 148,  402 

Deaf  and  dumb  persons,  incompetent  witnesses... 77,  266 

not  indictable 47 

Decapitation,  crimes  punished  with 38 

execution  by 135 

Defendant,  the 93-94  and  notes. 

arrest  of. 79,  40,  71 

confession  by,  cf.  Confession. 

deliberations  must  open  with  argument  for..l01 

is  not  considered  guilty  before  conviction..71, 93 

may  argue  his  own  case 93 

not  put  under  oath 312 

witnesses  for 94 

Degree  of  guilt,  how  determined 16,  49,  17,  60,  18 

Deliberations,  the 100-104  and  notes. 

Demented  persons,  cf.  Idiot. 
Disabilities  of  judges,  cf.  Judges. 

witnesses,  cf.  Witnesses. 

Diseased  criminal 38,  143 

victim 38,  141 

DiSPEOVAL  AND  CONFUTATION 31,  95-99  and  notes. 

effect  of. 96,  98,  320 

Division  on  verdict 348 

Divulging  judicial  proceedings 113,  356 

Drunkenness  excuses  crime,  when 48 

Dumbness  excuses  crime,  when 47 

incapacitates  the  witness 77,  266 


INDEX.  259 

Duress  excuses  crime 14,47  46 

when  it  does  not  excuse 15,  47,  43 

Duty  to  bear  witness 104,  260,  79,  281 

Eleazar  ben  Azaria O 

Jose  ha-Gelili [196,  210] 

Eliezer,  K [209] 

Escaped  convict,  cf.  Convict. 

Ethical  maxims [242-247] 

Evidence,  cf.  Witnesses 82  sq.  and  notes. 

circumstantial 82,  287 

must  be  parol 83,  288 

cover  the  whole  case 83,  291 

presumptive 287 

Examination 80-91  and  notes. 

preliminary 40 

Excision gj    yj 

Excusable  homicide 35 

Execution  by  burning 134,  385 

decapitation 135 

stoning 123^  332 

strangling 126^  337 

is  forbidden  on  Sabbath  or  festival 74 

place  of. 117,364,  365 

shall  closely  follow  the  verdict 18,  254,  116,  363 

Executioners,  THE jgj   37g 

^^^1® 23,  76,  134-135  and  notes. 

accidental  homicide  committed  in I35 

ends  with  high  priest's  death 134,  405,  406 

no  commutation  allowed .'...95'  405 

roads  leading  to 407 

Exposing  executed  criminals  not  allowed 131,  391 

practised  elsewhere 392,  396 

Ezra  and  tradition mqoi 

institutes  regular  court  days 59  217 

False  prophecy g^ 

witness,  cf.  Disproval. 

punishable  without  being  forewarned 19 


260  INDEX. 

Farmers  of  imposts,  incompetent  witnesses 77,  271 

reliabilitation  of 141 

Father  and  son,  verdict  by 106,  341 

killing  son 35 

.     son  abusing  his 26,  91,  29,  98 

Fees  to  judges 66,234 

witnesses , 274 

Feh  de  se 44,  160-163 

Felonious  homicide,  cf.  Murder. 

Fine  not  imposed  together  with  flagellation 62,  63 

remitted  on  voluntary  confession 76 

Flagellation,  oftenses  punished  with 21,  74,  24,  83 

punishment  by 138-139,418,  421,  422 

Forewarning  would-be  offenders 16-19,  55,  60,  61,  68 

Fortuitous  homicide 35 

Frightening  to  death 144 

Gamblers  are  incompetent  witnesses 77,  269 

rehabilitation  of. 141 

Gemara ..13,  [229] 

Gibbet 393,  394 

Golah  (exile) 76 

Gospel  teachings  and  the  Talmud [247-253] 

Great  Synhedrion,  cf.  Synhedrion. 

HakTiam  (sage) 55,200 

Hanging  blasphemers  and  idolators 128-130 

women  are  exempt  from 395 

Hearsay  evidence,  cf.  Evidence 78 

High  priest  as  a  Avitness 261 

committing  accidental  homicide 406 

his  death  frees  exiles  134,  406 

subject  to  Great  Synhedrion 45,  54 

Hillel 199,  [193-203,  244] 

Homicide 33-37  and  notes. 

at  victim's  request 42,  155 

committed  by  several  persons 36,  43,  159,  297 

culpable 36,  .324,  326-329 


INDEX.  261 

Homicide. — Continued. 

excusable  :  accidental 35  and  notes,  124 

fortuitous 35  and  notes,  124 

felonious,  cf.  Murder. 

justifiable 34,  115 

while  engaged  in  idle  sports 42,  156 

HoNORABiUM 65-67  and  notes. 

Horce  judicice 60,  218,  73 

Hunger,  killing  by ...144 

Identity  of  criminal 86,  297,  137,  389 

victim 86,  297 

Idiot,  incompetent  witness 77,  266 

not  indictable 46 

who  is  considered  an 48 

Idolatry 43,  48,  36,  89,  138 

instigating 37,  19,  36,  326,  333,  358 

Ignorance  of  fact 68 

law 55,  68.  36 

Illiteracy  disqualifies  the  witness 77 

Ill-treatment  of  parents 36,  91,  39,98 

Immodesty  disqualifies  the  witness 77,  272 

Immolating  children 36 

Imprisonment 34,  79,  82 

Impubescence 49,  179 

Incest 36-37,  287.  378 

duress  does  not  excuse 15 

Incompetent  testimony 43,  83,  287,  291,  86,  303 

witnesses,  cf.  Witnesses. 

Incorrigibles  are  imprisoned 34 

Indictable  persons,  cf.  Persons. 

Infancy 49-50  and  notes. 

disqualifies  the  witness 77,  264,  385 

Injuries,  cf.  Damages. 

inflicted  by  convict 402 

prisoner 71 

on  convict 30,  126 

prisoner 71 


262  INDEX. 

Inquest 40 

Instigating  apostasy,  cf.  Idolatry. 

murder 34,  82 

Instrument  of  death 39,  41, 151,  152 

Insubordination 74 

Interpreter,  not  allowed  in  Jewish  courts 204,  cf.  288 

Ishmael,  R [196,  210.  225] 

Jerusalem  Talmud [235] 

Johanan,  R [230,  235] 

ben  Zakkai,  R [203-209] 

Jose  ben  Halafta,  R [220] 

Joshua  ben  Hanania,  R [209-210] 

Judah  I,  R [222-229,  246] 

ben  Baba,  R 225,  [217] 

Judge,  candidature  for  office  of 64 

doubting  evidence 306 

honorarium  of. 66,  231 

if  not  elected  fairly 212 

must  be  guarded  in  examining  witnesses 94 

fast  the  day  of  passing  death-sentence....37, 113,  357 

give  reason  for  his  vote 104 

promotion  of 64,  229 

qualifications 57,208,  210,  58,215 

receiving  presents 67,  236 

Judgment,  cf.  Verdict. 

appeal  from,  cf.  Appeals. 

if  paid  for 234 

implies  sentence, 365 

reversal  of. 114-115,  358 

Jurisdiction  of  Court  of  Three 53 

Great  Synhedrion 54,  197,  198 

Lesser  Synhedrion 53,  195 

Kidnapping 39,  99,  291 

Killing  embryo  in  mother's  body 136,  355 

to  prevent  crime,  when  culpable 36 

justifiable 34,112,  115 


INDEX.  263 

King,  excluded  from  Synhedrion 210,  260 

not  exempt  from  duty  to  testify 260 

subject  to  Great  Synhedrion 45, 167,  54 

Laws,  consequences  of  cruel 2,  6 

cruelty  of. 8»  3,  6-9 

doubtful  right  of  cruel 5 

founded  on  necessity 1,  1-3 

framers  of  early  penal 2,  4 

humanity  of..4,  10,  12,  8,  9, 16,  100,  115,  161,  345,  351 

113,  357,  116,  363,  365,  118, 119,  370 

120,  373,  382,  421 

Talmudic,  based  on  Mosaic  sy.stem 33,  100,  340 

the  laws  of  :N'ature 47,  115,  288 

Lex  talionis,  inadequacy  of  the 23 

practised  by  other  nations 8 

substituted  by  fines 8,  23 

Limitation,  statute  of. [197J 

in  criminal  proceedings 300 

Magics 26,  32, 107,  108 

Magistrate 233,  236 

Major,  majority 49-50 

Majority,  not  necessary  for  disproving  testimony 324 

required  for  acquittal 105,  338 

conviction 105,  338 

Mala  in  se, — proJiibita 115 

Maladministration 29,  226,  255,  285,  355 

Malice 16,  57,  42 

Maniac,  cf.  Idiot. 

Master  killing  slave,  when  excusable 138 

Maxims  and  Kules 142,  428-458 

ethical [242-247] 

Meetings  of  courts,  cf.  Sessions. 

Meir,  E [216-222] 

Mekhilta [214,  228] 

Messengers  of  court,  cf.  Servitors 56 

Minor,  cf.  Infancy. 

has  no  discretion 183 


264  INDEX. 

MiKOB  Punishments 134-139  and  notes. 

exile 134-135,  405-409 

flagellation 138-139,  418,  421,  422 

imprisonment 24,79.  82 

penal  servitude 136-137,  412,  414-416 

Misdemeanors,  Crimes  and  Penalties, 

20-24  and  notes. 

Mishnah 13,  [214:  226,  227] 

compilations [193,  214,  220,  221,  225.  228] 

history  of  the [191-229] 

Missile  producing  death 39,  41 

when  lost,  how  substituted 151 

Mistaken  verdict,  when  reversible 114,  358 

Modes  of  death  penalties,  cf.  Capital. 
Monomaniac,  cf.  Idiot. 

Murder 38-44  and  notes. 

at  request  of  victim 42,  155 

malice  required  to  constitute 152.  42 

must  be  committed  by  an  individual 43 

penalty  of 28 

self. 44,  160-164 

what  constitutes 38-39,  136-143 

when  punishable  as  such  38 

Murderer,  by  whom  brought  to  justice 95 

diseased 38, 143 

not  permitted  to  escape  punishment 159,  359,  377 

of  diseased  person 38,  140 

Nasi  (Prince) 55 

Nathan,  E [216,  221,  222] 

Nature  of  capital  crimes 101 

Necessit}^  cf.  Duress. 

Necromancy,  cf.  Magics 26 

Nittai,  the  Arbelite [192,  243] 

Nonage,  cf.  Infancy 49 

Number  of  capital  crimes 7, 19,  25, 101 

crimes  punishable  with  burning 27 

decapitation 28 


INDEX.  265 

Xumber  of  crimes  punishable  with — Continued. 

stoning 26 

strangling 29 

misdemeanors  not  punishable 12,  37,  39 

punishable  with  exile 23 

flagellation 21,  74 

imprisonment.  ...24 
penal  servitude.  ..22 

Oath,  not  required  of  defendant 312 

witnesses 78,  276 

punishment  for  uttering  vain 36 

Object  of  punishment 3,  184,  202,  363 

Offenses,  aggravated,  how  punished 17,  60,  61,  24,  378 

Official  accuser 70 

executioner  121,  374 

Ordination  of  Kabbis... 58,215,  225 

Organizatiox  and  Jurisdictiox 51-56  and  notes. 

Outlawry,  unknown  to  Jewish  law 283 

Palistinean  courts 360 

Talmud [235] 

Pardoning  power , 424 

Parent,  cf.  Father. 

Pederast}- 26,87 

Penal  laws,  cf.  Laws. 

servitude 22,  75 

how  imposed 136,412,  413 

treatment  during 137,415,  416 

Perjury,  cf.  False. 

Persons  indictable 45-50  and  notes. 

incompetent  as  judges 210 

witnesses * 77 

not  indictable 46 

Physician  killing  patient 35 

Place  of  execution 117?  365 

holding  court 61-62,  224-225 

where  crime  is  located 88,  302 


266  INDEX. 

Pleading  for  defendant 101,  330,  103 

not  for  instigator 333 

Positive  commands,  number  of. 11 

transgression  of 12 

Posthumous  Ignominies 138-133  and  notes. 

burying  in  felons'  graves 131 

hanging 12S 

not  mourning 132 

Presumptive  evidence,  cf.  Evidence. 

Preventing  crime  by  homicide 34,  112 

Priest  removable  from  altar  to  scaftbld 166 

Principals  alone  are  punishable 132,  43,  86 

Probationers 63,  64 

participate  in  deliberations. ..102,  331,  107,  343,  109 

promotion  of. 64,  229 

ProdigaLson 26,  32,  106 

Prohibitive  laws,  number  of 11 

violations  of. 12,  37 

Prosecutor 70 

Provisos 13-19  and  notes. 

respecting  criminality 13.  14,  16,  27,  38 

punishment 43,  48,  17,  60,  18,  68,  23,  91 

31,106,  35,39,319,  99 

Puberty 49,  264 

Punishment,  the  less  is  discharged  in  the  greater 63 

Punishments,  cf.  Capital,  Minor. 

Qualifications  of  judges 57-5§  and  notes. 

witnesses 76,  260 

Questions  to  be  answered  b}^  witnesses 84-85 

regarding  the  manner,  hoio 89,- 303 

person,  xclw  and  whom 86,  297 

place,  icliere 88,  301,  302 

time,  ichen 87,  301 

test 90,  304,  305 

Rabbis,  ordination  of 215 

Rabh [230-233] 


INDEX.  267 

Rebellious  Elder,  cf.  Maladministration. 

Recanting  testimony 239,  91,  307 

Refuge,  city  of,  cf.  Exile. 

Refugee,  accommodations  of. 407 

dying  on  his  way  to  city  of  refuge 408 

leaving  protected  precincts 409 

protected  against  molestation 135 

Rehabilitation 140-141 

Relation  between  actions  and  laws 33,  [195] 

Relationship  among  judges 210,  69 

witnesses 'J"?,  273 

between  judges  and  clients 69 

witnesses  and  clients  or  judges 273 

Relatives  of  executed  criminals 370,  132 

Resisting  execution 376 

Retaliation,  cf.  Lex  talionis. 

Reveesal  of  Judgment 114-115  and  notes. 

Rigor,  judicial 9,  37 

Roads  to  exile,  cf.  Exile. 

RosJi,  (chief) 55 

Sabbath,  cf.  Violation. 
Sanctuary,  cf.  Exile. 

Scale  of  crimes  and  punishments 20 

Secretaries 56,  201,  65,  104,  345 

Seder  Olam  (a  Rabbinic  history) [220] 

Self  accusation 76.  268,  93,  311 

defense 47,  34,  113 

destruction,  cf.  Murder. 

exculpation 93,  119 

Sepes  legis 34,  98,  143 

Servitor 65 

causing  death  of  convict 35 

functions  of. 202,  138 

qualifications  of. 418 

when  his  parent  is  the  convict 418 

Servitude,  cf.  Penal. 

Sessions  and  Recruitments 59-64  and  notes. 


268  INDEX. 

Shammai [193,  201] 

Shemaiaand  Abtalion [193,  198] 

Simon  ben  Gamliel,  R [216] 

Shettah 32,  108,  239,  287,  [193] 

the  Just [192,  228.  242] 

Simultaneous  verdict  of  guilty  acquits 101,  330 

Slander 36,  62 

Slave,  master  killing 138 

not  competent  as  witnees 77,  263 

Slavery,  cf.  Penal. 

Soferim  (scribes) [192] 

Stoning,  crimes  punished  with 26 

execution  by 193 

Strangling,  crimes  punished  with 29 

execution  by 126 

Stripes,  cf.  Flagellation. 
Suicide,  cf.  Murder. 

Summary  conviction 293 

punishment 246 

Suspects  are  incompetent  witnesses 77 

rehabilitation  of 141 

Synhedrion,  the  Great,  antiquity  of. 196 

constitution  of 54 

jurisdiction  of. 54,  197.  198 

location  of 62,  224.  225 

organization  of. 55-56 

promotion  into 64 

qualifications 57-58  and  notes.  64 

quorum  of. 222 

seats  of 63 

sessions  of. 62 

the  Lesser,  constitution  of. 53 

jurisdiction  of. 53,  195 

location  of. 61 

organization  of. 55-56 

qualifications  of 57-5§ 

recruitment 64 

supplemented  when  necessary, 

109-110  and  notes. 


INDEX.  269 

Talmud,  the 13,  33,  [206,  236] 

based  on  Mosaic  code 33,  100,  340 

history  of [189-236] 

Teacher  and  pupil  in  one  court 341 

verdict  by 106 

killing  pupil 35 

Test-questions »0,  304,  305 

Testimony  not  subject  to  confutation 143,  301 

I)art  of  which  is  invalidated 318 

Theft 5^2,  75 

Time  of  Trial 72-'74  and  notes. 

when  crime  is  laid 81,  301 

execution  takes  place 250,  357,  116 

Tortures,  frequent  among  other  nations 263 

never  applied  by  the  Jews 310 

Tradition,  cf.  Talmud. 

sources  of. [192,  194] 

Tribunal,  a  murderous 6 

Tryphon,  E 6,  [210,  212] 

Two  capital  cases  not  tried  on  one  day '73,  252 

punishments  not  imposed  for  one  offense 18,  62,  63 

witnesses  always  necessary 13,  75,  259 

Unanimous  conviction  acquits 101,  330 

Usurers,  incompetent  witnesses 'J"? 

rehabilitation  of. 141 

Verdict,  thb 105-113  and  notes. 

by  father  and  son,  or  teacher  and  pupil 106,  341,  342 

of  acquittal  may  be  rendered  any  time lOO 

not  be  reversed 114,  358 

onviction,  deferred  till  next  day lOO,  326,  10§ 

may  be  reversed 114,  358 

simultaneously  rendered 101,  330 

Violation  of  positive  commands 12,  39 

prohibitive  ordinances 12,  37 

the  Sabbath 9,68,  26 

Votes,  particulars  in  counting  the 106,  340-342 


270  INDEX. 

Warning  would-be  criminals 16,  68 

crimes  not  conditioned  by 19,  68 

its  effect  on  verdict 17-1§,  60-63,  68 

Whipping ,....74 

Witchcraft 26,  90,  32,  107 

Witness,  cf.  Evidence. 

competent 'J'6 

confutation  of. 31,  95 

correcting  evidence 91,  307 

disproval  of. 31,  95 

duty  to  bear 104.  260,  '79,  281 

for  defendant 94 

high  priest  as  a 261 

incompetent "77 

may  not  act  as  judge 144,  293 

argue  the  case 103,  332 

not  required  to  swear 78,276 

penalty  of,  confuted 31,  97,  98,  323,  130 

when  not  imposed 97,  319,  323 

questions  to  be  answered  by,  cf.  Questions. 

Witnesses  are  the  only  legal  executioners 131 

prosecutors 70 

cautioning 78-79 

contradicting  each  other 305,  9S 

may  testify  to  what  they  saw  only 78,  82 

not  less  than  two,  always  required 13,  75,  259 

Woman,  immunities  of.  373,  395,  136 

incompetent  as  a  witness 77 

not  reprieved  when  pregnant 355 

position  of,  in  Talmudic  lore [237-240] 

Written  testimony  is  not  valid 388 

Zahen  Mamre  (rebellious  elder),  cf.  Maladministration 29 


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